
    Moses Judah against Immer Judd.
    
      Jl., on the 5th of February, 1810, at S. in this state, made his promissory note, for 657 dollars, 35 cents, payable to Jl. or order, three date^iT on he l/th of March fob lowing, at the city of Ne-ai-York, assigned the note to C. of the city of JVew-York, who immediately put a tetter into She post-office at New-York, addressed to ,1. at S., containing notice of the assignment ; and on the 19th of May following, sent a similar notice to Jl. at S. ,■ but the first letter was never received. The note being in the hands ofF.’s attorney in this state, at the time of the transfer, was not in fact endorsed and delivered over to C. until after the 31st of March, 1810. After the.execution of the note, D. commenced a suit, by process of foreign attachment, against i?., and on the 26th of March, 1810, a copy of such process was left with Jl. as the trustee and debtor of Jl. On a scire-facias brought by 1). against Jl., it was held, 1st, that notice of the assignment, to the maker of the note, was indispensably neces-, sary to the validity of the transfer ; and 2dly, that merely putting a letter into the post-office, at JYem-York, containing notice of the assignment, was not sufficient to vest the property of the note in the assignee.
    MOTION for n new trial.
    This was a scire-facias against Judd, as garnishee, in a process of foreign attachment.
    The original action was brought against John S'hotrveíJinñ Jeremiah Skotwcll; and the defendant, Judd, was served with a copy of the process, on tSie 2011: of March, 1810.
    On the trial, it appeared, that «w the 5ih of February, 181(1. at Southington in this state, the defendant made and executed promissory note to John & Jeremiah Skotrcdl, for 657 dol-jars, 35 cents, payable to them or their order, three years after its date ; that on or before the !7tb of March, 1810, John& Jeremiah Shohvcll, at (!:•■ city oí Ncrn-Vorlc, for a valuable consideration, assigned the note to one Gilbert Shotniell of the city of Nem-York ,* bul the note was not then actually endorsed and delivered to the assignee, t! being its the possession of Nathan Smtik, Esq. of I\\w-Ilunn, as the attorney of John & Jeremiah Shotted.' ; they, however, on the 19th of March, requested Smith So delis er the note to liallet & Shoi-ivell, of which firm Gilbert Sholwdl was a partner ; so that the note was, not in fact endorsed and delivered over to the assignee until after the 31st of March, 1810; after which time, it svas so endorsed and delivered. It appeared, also, that on the 17th of March, 1819, nine days before the defendant was served with notice of the process, Gilbert Shot-well addressed a letter to the defendant, and lodged the same in the post-office in the city of Nav-Ycrk, giving him notice of the assignment of the note; and that on the 19th of May 
      following, he addressed another letter to the defendant, giv-iug i'.m similar notice, and also stating, that he had previously written to him, to the same etlcct. It was, however, proved, that the leiier of tin; 17 th of March, was never received by the defendant.
    It was contended, in behalf of the plaintiff, that notice of the assignment of the note, was indispensable to establish the validity of the transfer to Gilbert ShotwcU ; that such notice was not proved by the facts disclosed on the trial; and that, therefore, he was entitled to a verdict. The court charged the jury, that it was unnecessary to enquire into any fact put in issue by the parties, other than that respecting the notice before mentioned; and that in point of law, the facts disclosed did not prove such notice, and, therefore, directed them to find a verdict for the plaintiff. The jury relumed their verdict accordingly ; Whereupon, the defendant moved for a new trial, on the ground of a misdirection; which motion '.vas reserved for the consideration of the nine Judges.
    
      Daggett argued in support of the motion.
    He cited Oreen v. Gillet. ante, 485. Wakefield v. Martin, 3 Mass. Rep. 558. Dix v. Cobh, 4 Mass, Rep, 508. Sill r. Wormvick, 1 H. Black 601.
    
      T. S, Williams, contra.
    He cited Woodbridgc v. Perkins, 3 Day's Rep. 364.
    
   Mitcheuj, €h. J.

The question arising upon this motion, is, whether the right to the money due on tile note given by [miner Judd to John & Jeremiah Shotwell, is, by law, vested in the assignee, or in Moses Judah, the creditor of the assignors ?

The note was executed in Connecticut, and was made payable to the Shotwells, or their order. The assignment was made at the city of New-York, while the note was in the hands of N. Smith, Esq, at Neiv-Havm. A letter containing nolice of the assignment was put into the post-oflice at New-York, nine days previous to the leaving of the copy of the process in service with liie defendant ; yet, Hie letter cott taining such notice was not received ; nor was any notice of the assignment received, until about two months after notice of the foreign attachment, '['he note was not actually endorsed and delivered to the assignee, until after the service of the foreign attachment.

The recent decisions of the courts its dual-Britain, which have been adopted by our courts, have placed beyond al! dispute, the assignable nature of chose s in action ,- and notice to the debtor, of the assignment, is dearly necessary to secure the title of the assignee. Without such notice, all acts of the assignor relating to an assignable instrument, are binding : A payment, or retease will be euectimi, Notice is said to be indispensable to render the assignment of a specialty sufficient; and by our law, all written contraéis executed, as the note in question was executed, w ere, at the time of the assignment, considered as specialties.

It is, however, urged, that the assignment was valid, at all events, as between the parties, without notice; and that as the attaching creditor can be in no belter situation than his debtor, he must attach the property subject to al! lions created by him. Upon this principle proceeded the case of Wakefield v. Martin, 3 Mass. Rep. 558, and the case of Dix v. Cobb, 4 Mass. Rep. 503. The court, in expressing their opinion in these cases, say, that as the debtor, after the assignment and before notice, has no equitable interest in the chose in action, the creditor can acquire none by his attachment, as he attaches only the right and interest of the assignor. The correctness of these d> visions may be doubted, since the determination of the case of Woodbridge v. Perkins, 3 Day's Rep. 364. The principle on which, the above objection is founded, cannot, therefore, be adopted by this courts

In the case of Woodbridge v. Perkins, there was an assign--inent of a book-debt, without notice to the debtor. The court held, that until notice to the debtor, he remained the debtor of the assignor ; and, of course, could not he considered in the debtor of the assignee ; that in case of an assignment of a bond, or note, notice and delivery were both necessary and, as in Dial case, the book-debt was incapable of delivery, that notice alone was sufficient ; but that such notice was indispensable, and the want of it would defeat the interest of the assignee in favour of an attaching creditor. Doubtless, tire assignment in that case, was operative and effectual, ns between the parties; but the attaching creditor took the property discharged from the lien to which it was subjected in the hands of the assignor.

Indeed, the claim of an attaching creditor may, with good reason, be regarded in a more favourable light than that of the assignor himself. There can be no equity in permitting the latter to retain the amount due upon a chose in action, which has been assigned by a solemn and deliberate contract, ami after having receive^, as in common presumption he must have done, a full consideration for the transfer, indeed, to allow him to recover the money, would hazard the interest of a bona fide purchaser ; and would tend to the grossest injustice, as welt as to a circuity of action : For the assignee would recover the money received by the assignor, by virtue of an implied covenant or promise contained in the contract of assignment.

But an attaching creditor appears under circumstances totally ditferent from those of the assignor. Having parted with his property, relying upon the responsibility of his debtor, he has the same equity as the assignee : To allow him a preference, would neither lead to injustice, nor pro-mole litigation. It would barely secure to one party, who lias taken all those steps which the law makes necessary, a preference over another who has been guilty of no laches. Vigilantibus, non dormientibus, jura subveniunt.

if a prior mortgagee neglects to give notice of his lien, by recording his deed, a second mortgagee will be preferred, if he procures his deed to be first recorded ; and yet the first conveyance may have been perfectly good as between the parties, and the second mortgagee acquires a title divested of an incumbrance to which it was subject in tire hands of the mortgagor, at the time of the second transfer.' The same rule is applicable in case there are two grantees of land, both claiming title by absolute deeds of feoffment, where the grantee in the died last executed, procures it to be first recorded.

If the note in the present case, had, before notice given to the debtor, been assigned over by the promisee to a sec ond bona fide purchaser, and notice of the latter transfer been immediately given, the second assignee would have been preferred. And it is difficult to perceive why the interest of an attaching creditor should be regarded less favoura-bly, than that of a second assignee in the case mentioned The only difference between the two clises consists in this, that the one became assignee by the voluntary act of the .promisee, and the other by his diligence, and the operation of law. They ought equally to take the property discharged of the prior incumbrance.

It is further argued, that in the present case, no laches is imputable to the assignee, since notice was put into the post-office at Nem-York, nine days previous to the leaving of the copy in service; and that due diligence is equivalent to actual notice.

It is true, that by the law merchant, the sending a notice of non-acceptance, or non-payment, by the first mail, has been deemed equivalent to actual notice, although the letter should miscarry. Chitty on Bills, 234. This rule was dictated by reason of convenience, and established for the benefit of commerce. But the present case cannot be governed by the principles of mercantile law, since the doctrine relating to notice above mentioned, is wholly inapplicable to a case of a transfer of a note; much less does it apply to the assignment of a chose in action, of a description, which, in our law, is deemed a specialty. In the case of Woodbridge v. Perkins, notice is said to be indispensable. Besides, it does not appear, that notice was sent by the first mail, as required by the rule above mentioned ; but merely, that nine days elapsed between the sending of the notice, and the leaving .of the copy of the writ with the garnishee. An interval of nine days was more than sufficient to enable the assignee to give actual notice to the debtor, at the distance of one hundred miles. The sending of a deed by mail for the purpose of being recorded, in case real estate had been transferred instead of a note, would not have been considered sufficient. Due diligence, in such case, is all (hat would lie required ; and yet, an attaching creditor, provided his evidence of title was first recorded, Would hold against the pri- or grantee, unless he had lodged his deed with the town-clerk, within a reasonable time. Moore v. Watson, 1 Root's Rep, 388. Franklin v. Cannon, 1 Root's Rep. 500. Welch v. Gould, 2 Root's Rep, 287. 1 Swift's Syst. 308.

Whether a delivery of the note, as well as notice, was necessary to render the assignment valid, as laid down in Woodbridge v. Perkins, and in Ryall v. Rolle, 1 Atk. 177. Is a question which the court need not deckle ; since the want of notice is fatal to the claim of the assignee.

A new trial ought not to be granted.

The other Judges, severally, concurred in this opinion.

New trial not to be granted.  