
    Ebenezer D. Ammidown versus Calvin Wheelock, Principal, and William Healy Junior, Trustee.
    Where a debt ha? been assigned by the creditor, and the debtor is afterward summoned as his trustee, in order to entitle the assignee to the benefit of his assignment, it is not necessary that he should give notice of it to the debtor before the service of the trustee writ on him ; it is sufficient if the notice is given at any time before he has made his answer.
    Where such an assignment is disclosed in the answer, and the assignee desires to become a party to the suit under St. IS17, c. 148, and the Court of Common Pleas refuses to let him become a party, he may bring the question before this Court by a bill of exceptions, and upon a reversal of the decision below, may have a jury trial before this Court.
    In order to entitle the assignee to become a party under the statute, it is not necessary that he should offer to the person summoned as trustee, any evidence of the assignment, beyond his own statement ; it is sufficient if he gives the trustee, before his answer, notice of what appears to be a valid assignment.
    Where a note not negotiable is assigned, and the maker is subsequently summoned as trustee of the payee, in order to entitle the assignee to become a party to the suit, it is not necessary that he should exhibit the note to the trustee when he gives the trustee notice of the assignment.
    In the Common Pleas the trustee made the following disclosure.
    On October 11, 1828, he made a note not negotiable, by which he promised to pay the defendant 56 dollars on demand with interest. He was summoned in this action early in the evening of the same day, he thinks between six and seven o'clock. A few days afterwards Smith Tourtellott informed him, that he, Tourtellott, had purchased the note of the defendant, and requested the trustee to pay it to him, Tourtellott. He then informed Tourtellott of the service of the trustee process upon him. Tourtellott, on November 29, 1828, handed the trustee a written notice signed by Tourtellott^ in the following words, viz. “ This is to give you notice, that I purchased a note of hand [describing the note above mentioned] on the same day of the date of said note, about three oj the Mck in the afternoon of the said day. I sold said Wheelock a pair of oxen, and took the abovementioned note towards the payment of said oxen.” The notice was accompanied by a certificate signed by the defendant, that he had transferred the note to Tourtellott, as stated by Tourtellott. The trustee, in the afternoon of- October 11, before the service of the writ upon him, saw the defendant’s boy driving a ¡air of oxen which the trustee supposed to be the same which Tourtellott stated that he had sold to the defendant.
    At the next term of the Common Pleas after the answers were given, and before the court had given any opinion upon them, Tourtellott appeared, and presented a petition, in which he requested the court to permit him to become a party to the suit, in order that he might have a jury tó try the validity of the assignment, according to the statute ; but the court refused to grant the petition, and adjudged Healy to be trustee.
    
      (M.'Sd.
    
    To this' refusal and judgment Tourtellott filed exceptions
    
      Lee and Bottom, for Tourtellott.
    Tourtellott, as assignee, was entitled to become a party to the suit and have the validity of the assignment tried by a jury. St. 1817, c. 148, § 1; Mams v. Robinson, 1 Pick. 461. If the plaintiff disputes the validity of this assignment, he also has the right of having it tried by a jury, which is all that he can reasonably require. Gordon v. Webb, 13 Mass. R. 215. There was no neglect in Tourtellott in giving notice of the assignment, for it is well settled that a notice given at any time before the trustee answers is sufficient. Foster v. Sinkler, 4 Mass. R. 450; Fix v. Cobb, 4 Mass. R. 508. A negotiable note may be assigned by delivery, without any indorsement or other writing, and a fortiori, a note not negotiable. Jones v. Witter, 13 Mass. R. 304.
    
      Tufts, for the plaintiff.
    The remedy provided by the statute of 1817, is not applicable to this case, because the trustee’s answer does not show any assignment of the debt. In order to entitle the assignee to the benefit of the statute, he should have offered the trustee some evidence of the assignment. Foster v. Sinkler, 4 Mass. R. 450; Wood v. Partridge, 11 Mass. R. 488; Comstock v. Farnum, 2 Mass. R. 96. In the present case the assignee did not exhibit to the trustee any assignment, nor did he produce the note ; and he has not even offered an affidavit to prove the assignment.
    Oct. 6th.
   Parker C. J.

delivered the opinion of the Court. We think enough was disclosed to entitle the supposed assignee of the note to a trial by jury of the validity of his assignment. The respondent disclosed, that after giving his note to Whee-1 )ck, and after service of the trustee process on the afternoon c. f the same day, Tourtellott informed him that the note had been assigned to him, and stated the consideration he had given for it; that Wheelock, after the service of the trustee process, also certified to him that he had assigned the note to Tourtellott for a yoke of oxen purchased of him in the manner stated by Tourtellott; and the trustee himself saw Wheeloclt’s boy driving off the cattle which had been Tourtellott’s, on the afternoon of the day on which the note bears date. We think this is prima facie evidence of an assignment, which, if boni fide, would pass the equitable interest in the note to Tourtellott, notwithstanding he did not present it to the trustee when he gave him notice of the assignment; and notwithstanding the trustee had no notice until after the service of the writ upon him.

By Si. 1817, c. 148, whenever any person, summoned as trustee, shall disclose an assignment to another, of goods &c. of the principal in his hands, and the plaintiff in the suit shall object that the assignment ought not to have effect to defeat his attachment, and the court shall think it just or convenient that the assignee shall become a party to the suit, the person so staled to be assignee may, for the purpose of trying the validity of his assignment, become a party &c.

It was contended by the counsel for the plaintiff, that the power of the Court of Common Pleas over this subject was discretionary, and that no appeal would lie from its decision, whether the assignee shall be admitted a party or not ; but we cannot think such was the intention of the legislature, especially as it is provided in the latter part of the first section of the statute, that either party may appeal from any judgment of the court as in other cases.

It was also contended, that in order to give the assignee a right under the statute, there must be a disclosure of an assign. ment perfect in its form, and one which would be valid unless fraudulent. We think the answers of the trustee in this case disclose sufficient to bring the case within the statute. He was informed by both assignee and assignor that the note had been transferred, before he was served with process ; and though the notice was not given until afterwards, the assignment might be good. It seems to us to be a case in which the testimony of the debtor, who stands indifferent between the plaintiff and the assignee, would be essential to the right of the case.

The judgment of the Court of Common Pleas is reversed, and the case stands for trial here; the assignee to become a party, giving bond according to the statute. 
      
       See Cushing on Tr. Proc. 102, note 3. Revised Stat. c. 109, § 15 to 21.
     