Gilchrist, C. J. This process is an equitable action. Boardman v. Cushing, 12 N. H. Rep. 114. The question is, to whom does the property in the note belong ? If the note belongs to the defendant, the trustee is chargeable. The facts which go to show that the ownership of the note is in the defendant, are the following: The note is payable to the defendant. When the note was given, Silas H.

Sabin professed to be doing business for the defendant, and said “ it was surprising how much money John made by dentistry.” The probability that when he lent money, he would not ^ake a note for it, payable to another person than the owner. On the other hand, it is to be considered that the note and the indorsements are in the hand-writing of the deceased, and the interest has been paid to his executors. The maker of the note and the defendant were unknown to each other, and the deceased t&ld the maker that he would always find the note in his possession.

The note was found among his papers, and inventoried as his property, and the defendant never made any claim to it. Silas A. Sabin swears that he personally knows that his father furnished the money, that the note was his property, and that John (the defendant) never had any interest in it; that his father was in the habit of lending money and taking notes therefor, payable to his different relatives, but never gave up his claim to them when hg retained possession of the papers. It might be shown by the testimony of the defendant, whether the note was his property. He stands indifferent between the parties.

He does say, in his affidavit, that he never held any claim against Johnson. But it might have been shown whether he had any money in the hands of his father for investment. Upon the whole evidence, we think the note did not be-,, long to the defendant. Trustee discharged.