
    BOYLAN against VIGHTE.
    OH CERTIORARI.
    Re-delivery of a note by assignee to assignor.
    This case is sufficiently stated in the opinion delivered by the chief justice.
   [*] Kirkpatrick, C. J.

— This action is founded on a promissory note given by the defendant Boylan, to the plaintiff, bearing date Dec. 10, 1801, for $10. The defendant, sets up by way of defense, that he had on the 2d day of August, 1802, prosecuted a suit against Vighte, the plaintiff, before one Justice Ayres, and obtained judgment therein for $12, and pleads that judgment as a bar, alleging that this note either was, or ought to have been set off against him in this action. In the course of the trial, the plaintiff, Vighte, offered to prove by a witness, that at the time of bringing of the suit by Boylan, and the entry of the judgment in his favor for twelve dollars, this note was by assignment, in [70] the hands of one Vichólas Arrowsmith, and that it was not brought forward as a set-off in that action. And the principal reason assigned for the reversal of this judgment is, that this testimony was admitted.

But I think the justice did right. Upon inspecting the note, which is itself before us, as the case filed, we find an assignment to Arrowsmith, indorsed, dated Dec. 21, 1801 ; and also under that, the name of Nicholas Arrowsmith, indorsed in blank. It has been argued, that this blank indorsement does not re-convey the property; and .that, therefore, Vighte had no right to sue this action. Upon the non-payment of a note assigned, the assignee has a right to resort to the assignor, and demand the money without any re-assignment. The re-delivery is all that is required. It does not lie in the maker’s mouth to set up the right of the assignee against the original payee. The possession of the note is sufficient for him, unless the payee can show payment to the assignee. From.this view of the oase, I think the judgment must be affirmed.

Boylan, for plaintiff.

Rossell, J. and Pennington, J. — Concurred.

Judgment affirmed. 
      
       Vide 3 Wheat. 172, 6 Cow. 499; Saund. P. and E. 262. — Ed.
     