
    Thayer vs. Havener.
    Where the payee of a promissory note lodged it, with other demands, in the office of an attorney for collection, and afterwards drew an order on the attorney, directing him to pay to a third person the amount which might be collected on the demands left with him ; which the attorney accepted to pay such sums as he should receive after obtaining what might be due to himself; — this was held to be no assignment of the note in question; and therefore a subsequent payment to the promisee was held good.
    This was assumpsit by the indorsee against the maker of a promissory note, made Sept. 22, 1825, for sixty dollars, payable to one James Cochran or order, in six months from the date.
    At the trial, before Weston J. it appeared that soon after the note was given ii was left, with others, by Cochran, in the office of Wilson & Stevens attornies, for collection; that on the 5th day of November 1825, Cochran drew an order on Wilson & Stevens, directing them to pay to Thayer the plaintiff “ the amount that is or shall be collected on the demands I left with you for collection which order Thayer transmitted to the.drawees for acceptance, requesting them to furnish him with a memorandum of what demands of Cochran’s 
      ■ hey bad in theii hands, with the probabilities of collecting then). The drawees accepted the order in these words, — “ we will pay such sums as we receive, after getting our due, to the person presenting this order.”
    Afterwards, on the Jftth daj of November 1825, the defendant and Cochran rescinded and annulled the bargain between them, upon which the note had been given ; and the consideration on both sides was waived and abandoned. The note, however, was not taken up by the defendant; and in May 1826, Cochran indorsed it to the plaintiff.
    Upon this evidence a nonsuit was entered, subject to the opinion of the court whether the defence was admissible and sustained.
    The question was submitted without argument by
    
      Wilson & Stevens for the plaintiff, and Jhhman for the defendant;
    and the opinion of the Court was delivered at the ensuing July term in Waldo, by
   Pakius J.

The note in question was, by the terms of it, made payable March 22, 1826, but it was not indorsed to the plaintiff until May 1826, and of course is liable, in this action, to the same equities and the same defence as though Cochran himself was the plaintiff, unless the alleged assignment of the note to the plaintiff in November 1825 has changed the principle. If it has not changed it, the nonsuit must be confirmed, because it appears that ten days after the alleged assignment, the bargain, out of which the note originated, had been mutually rescinded by Cochran and Havener, and the consideration abandoned. As to the assignment, the facts are few and simple. They only shew that a short time before the contract was annulled, the note, with others, had been lodged by Cochran with Messrs. Wilson & Stevens for collection ; — and that Cochran on the 15th of November drew an order on them for the amount of monies they might collect on those demands. They accepted tiie order conditionally — that is, to pay such sums as they might receive, alter getting their due, to the person presenting the order, it does not appear that they ever received any thing on the notes; — - it does not appear that Thayer was a creditor of Cochran, or that the note, if assigned, was assigned to the plaintiff upon a valuable consideration ; — and if there had been such an assignment and such a consideration, it does not appear that the plaintiff gave the defendant any notice of it prior to the rescinding of the contract. Nothing can be plainer than that a payment of a debt to the assignor, after the assignment but before notice of it given to the debtor, is a good payment and discharges him. The defence, in this case, is as effectual as payment. There is no possible ground on which this action can be maintained. Nonsuit confirmed.  