
    Mitchell vs. Allen & al.
    
    T. J. F. indorsed and delivered a promissory note to W. G. F. and took from him a receipt therefor in which it was stated, that the proceeds were to be paid on certain notes held by F. F. — after which, and prior to payment to F. F., or notice to him of such indorsement, or assent on his part thereto, T. J. F. assigned the note to S. M. and in writing revoked the orders given to W. G. F. regarding its appropriation, and ordered it to be delivered to S. M. In an action of trover, brought by S. M. against the assignees of F. F. who had obtained possession of the note, it was held, that the property in the note by the first transaction did not pass to F. F. or to W. G. F. as his trustee, but remained in T. J. F. — that he had the legal pow&r of appropriating it at any time before the power granted to W. G. F. had been executed: — and that though S. M. had never had possession of the note, still, he might maintain trover for it.
    This was trover, for a note of hand given by one Daniel Forhes to Thomas J. Forbes, for $535, 98, and was submitted for the opinion of the Court upon the following agreed statement of facts.
    The note in question was indorsed and delivered to William G. Forbes, Sept. 8, 1832, from whom said Thomas, at the time, took the following receipt, viz.: “ Received of Thomas “ J. Forbes, a note for $535, 98, signed by Daniel Forbes, “ the proceeds of which, when collected, I am to apply to the “ payment of certain notes given by said Thomas J. Forbes to “ Franklin Fling in May last.
    
      “ William G. Forbes.”
    
    Prior to this, Thomas had drawn an order on Daniel, in part payment of said note, for $ 100, in favour of one William Bradbury, and for $75 in favour of said William G. Forbes, which had been sent to Daniel, but there was no proof that he had accepted them, or that Bradbury had any knowledge of the order drawn in his favour, or that Fling had any knowledge of the indorsement and delivery of the note to William G. Forbes for his, Fling’s, benefit.
    These facts had been disclosed by Thomas in an action, the present plaintiff against him, on his being arrested, and carried before two justices of the peace, under the provisions of the statute entitled “ An act for the abolition of imprisonment of “ honest debtors for debt.” Upon the justices’ stating their opinion to be, that, he had not divested himself of all interest in said note, he made and executed an assignment of it to the plaintiff, and also wrote upon the receipt aforesaid of William G. Forbes, as follows : “ Mr. William G. Forbes, please to de- “ liver the within note to Syhanus L. Mitchell, or his agent, “ Isaac S. Whitman, I having assigned the same to said Mitch- “ ell this day ; and I hereby revoke the within directions as to “appropriation of the note or proceeds. September 11, 1832.
    “ Thomas J. Forbes.”
    
    At the time of said examination before the two justices of the peace, and prior to the assignment aforesaid to the plaintiff, John Appleton, Esq. being present, notified the justices, and the plaintiff’s counsel in that suit, that the assignees of Fling, (the defendants in this action,) would accept of, and agree to, the assignment made to William G. Forbes, for the benefit of their assignor, and immediately on the same hour communicated what he had done to said assignees, who approved and confirmed his proceedings.
    The plaintiff and defendants had both regularly exhibited to William G. Forbes the evidences of their respective claims and demanded the note. He delivered it, with the assent of Thomas J. Forbes, to the defendants, on their giving him indemnity against the claim of the plaintiff, and an agreement that its proceeds should be appropriated to the payment of Fling’s notes.
    Judgment was to be entered for the plaintiff or defendants, with costs, as the opinion of the Court should be upon the foregoing facts.
    
      
      Kent, argued for the plaintiff,
    that as neither Fling nor his assignees, had assented to the assignment to William G. Forhes at the time of the examination before the justices, Thomas had full power to revoke the order previously given to William, and to assign the note, as he did, to the plaintiff. What was done by Appleton w'as entirely ineffectual; he having no authority whatever to act for Fling or his assignees. He cited the cases of Foster v. Lowell, 4 Mass. 308; and Thayer v. Havener, 6 Greenl. 212.
    
      Starrett and Appleton, for the defendants.
    The receipt of William G. Forhes, was a virtual assignment of the note to Fling and his assigns, and could not be revoked; — at all events, not until they had had a reasonable time to assent to, or to dissent from said assignment. And they having assented within a reasonable time, that assent operated retroactively and took effect from the day of the date of the receipt. Fling’s assignees also having approved the act of Appleton subsequently, was equivalent to prior authority : and the plaintiff, therefore, not only took his assignment after Fling’s, but after express notice thereof, and therefore acquired nothing under it.
    But there was no necessity for express assent to the assignment by Fling or his assigns, it will be presumed, it being for their benefit. Halsey v. Whitney, 4 Mason, 214; 1 Johns. Cas. 209; Ward v. Lewis, 4 Pick. 251; New-England Bank v. Lewis &f al. 8 Pick. 121 ; Hall v. Marston, 17 Mass. 579.
    
    Again, this note was a chattel; supposing, therefore, the creditors to have equal rights after notice, then he who first obtained the possession acquired the legal title. Lanfear v. Sumner, 17 Mass. 110.
    They contended further, that the plaintiff never having had possession of the note could not maintain trover for it.
   At a subsequent term the opinion of the Court was delivered by

Parris J.

The note in question is claimed by both parties as creditors of Thomas J. Forhes. On the 8th of September, Thomas deposited it with William Forbes to collect, with directions to pay over the proceeds to Fling, the defendant’s assign- or. It remained in William’s hands uncollected and without any notice having been given to Fling, or his assignees, only three days, until the 11th of September, when Thomas revoked his directions as to the appropriation of the proceeds of the note, and assigned the note itself to the plaintiff. If he had the power to do this the plaintiff acquired a title to the note and must prevail.

It is contended, that the transaction between Thomas and William, on the 8th of September, was such an assignment of the note as constituted William the trustee of Fling, and divested Thomas of all interest in the note, and power to control its collection or appropriation. If there was such an assignment as vested the property in William, in trust for Fling, then Thomas had no remaining interest, and of course could convey nothing to the plaintiff, and William, as the agent or trustee of Fling, would be accountable to him for due fidelity in collecting the note, and for the proceeds when collected.

But we think it is not to be viewed in that light. From the language of the receipt, it is manifest that the property in the note did not pass to William,, either in his own right or as trustee ; but remained in Thomas. William had no interest in the debt, and consequently could not sue as indorsee. The order which he held on Daniel, might or might not be accepted.. If accepted, his remedy would be against Daniel as acceptor ; if not accepted, his remedy would be against Thomas as drawer. The receipt makes no reservation of any claim upon the note by William or by Bradbury, arising out of the orders drawn in their favour by Thomas. No person can sue as indorsee, unless he be the owner of the note, or has some legal or equitable interest therein. Thatcher v. Winslow, 5 Mason, 58.

It is unnecessary in this case to enter upon an examination of the question, whether an assent to an assignment, by a creditor who is clearly to be benefited thereby, may be presumed so as to render the assignment valid against subsequent attaching creditors, as there was here no attempt to assign. No words of assignment or conveyance are used. The defendants’ counsel contended, that an assent may be presumed, and cited a number of cases in support of his position. From the case of Russell v. Woodward. 10 Rick. 408, it would seem, that in Massachusetts an assignment would not be valid to pass the property, unless there be an express assent by the creditor, who claims under it.

Suppose, instead of a note Thomas had deposited some article of merchandize with William, with directions to sell it, and pay the proceeds to the defendant in this action. In what capacity would William act in making the sale ? Undoubtedly as the agent of Thomas. The latter would be considered as the vendor and accountable as such to the purchaser. Until the sale, the chattel would be liable to attachment by the creditors of Thomas, and he might revoke his direction to sell, or in the case of the note, to collect and appropriate at any time before the power granted had been executed ; — as in Bristow v. Taylor, 2 Stark. Rep. 50, where partners, on the dissolution of their partnership, empowered an agent to receive and pay the joint debts due to and from the partnership, and a debtor to the firm acceded to the arrangement and promised payment of his debt to the agent, yet it was held that one of the partners, before payment of the debt, might countermand the authority to receive it.

Neither does the principle apply in this case which was recognized in Lanfear v. Sumner, 17 Mass. 110, cited in the argument, that where the same goods are sold to two different persons by conveyances equally valid, he who first lawfully acquires the possession, will hold them against the other. Here is a sale to one person only, and the purchaser is attempting to recover the article sold, from those who obtained possession from the vendor’s agent after his authority, as such, had been revoked, and they knew it.

By the assignment of the 11th September, the general property in the note passed to the plaintiff; and as he has proved a conversion by the defendants, he is entitled to a remedy under this form of action, although the note did not actually come into his possession. 2 Saund. 47, a, note 1 ; Bac. Abr. Trover, C.; 1 Chitty Pl. 150.  