
    * Nathaniel Willis, Plaintiff in Error, versus William Twambly.
    
      fi minor being possessed of a promissory note, payable to himself and not negotiable, exchanged it with A. for a watch which was worthless. The next day he tendered the watch to A. and demanded the note, to neither of which A. acceded. The maker of the note, being informed of the transaction, and receiving a discharge from the minor’s father, gave a new note for the debt. A afterwards passed the first note to B. assuring him that it would be paid. B. sued the maker in the name of the minor, and the Court held, that the note was void from the rescinding of the contract by the minor.
    This was a writ of error brought to reverse the judgment of the Court of Common Pleas holden in the County of Oxford, rendered in an action in which the said Willis was plaintiff and the said Twambly defendant.
    The original action was instituted upon the following note, namely. “ Paris, Dec. 10th, 1808. For value received I promise to pay Nathaniel Willis or order ten ewe sheep, four of them to be lambs, in four years from the date. William Twambly.'1'1
    
    The cause was tried in the Court below, upon the general issue ; and, a verdict being returned for the defendant, under the direction of the Court respecting the law upon the facts proved, the plaintiff tendered his bill of exceptions to the said direction, which was allowed and signed by the presiding judge of that Court.
    The facts, upon which the direction complained of was founded, were substantially as follows. The plaintiff, at the date of the'note declared on, was a minor. Some time after the date of the note, a bargain was made between the plaintiff, still being a minor, and one Cook, for the exchange of the note for a watch, which was almost worthless. The next day after this bargain, the plaintiff, under the direction of his father, annulled it, by tendering the watch to Cook and demanding the note, which Cook refused to deliver, and also to ■take the watch. The plaintiff then forbade Cook to dispose of the note ; and Twambly, the maker, was informed of all the circumstances. Upon receiving a discharge of the note from the plaintiff’s father, the defendant gave a new note to the father. Cook after-wards, for a valuable consideration, passed the note over to one Raynes, assuring him that it was due and would be paid by Twambly, Raynes, being ignorant of the attempt by the plaintiff to annul the bargain made by him with * Cook, instituted the original action in the name of Willis. The Court directed the jury, in substance, that this bargain, made with Cook, was voidable ; and that it had been sufficiently avoided by the minor, while the note remained in the hands of Cook.
    
    
      
      Fessenden, for the plaintiff in error.
    The Court will protect an innocent assignee, who has fairly obtained his interest in the thing assigned ; and will not permit the defendant to avail himself of the infancy of the nominal plaintiff against such a bona fide assignee. 
    
    Parris, for the defendant in error.
    
      
       3 Burr. 1804. —1 B. & P. 480. —4 Esp. Rep. 188. —2 H. Black. 513. —1 Com on Contracts, 1,2. — 8 Mass. Rep. 465.
    
   Parker, C. J.,

delivered the opinion of the Court. Whether this note or promise was ever assigned, so as to enable Cook or Raynes to maintain an action against the promissor, even in the name of Willis, the minority of Willis being put out of the question, we need not now determine. There was no assignment in writing, nor any signature of Willis on the instrument, over which an assignment could be written, nor any promise by Twambly to pay any person but Willis. Whether the mere manual delivery of the evidence of a contract, although intended to operate as a sale or transfer, could authorize a suit in the name of Willis, is a question of some doubt.

But we are all clearly of opinion, that, had the assignment been ever so formal, it might be rescinded by the minor, it being a contract by which he could not be bound ; and that the note ceased to be the property of Cook, from the time when he was notified by Willis, that he considered the bargain void, and was tendered the watch, which was the consideration of the bargain. The settlement made by Twambly, when he gave a new note in lieu of this, discharged him from liability on this contract. For, although he then knew that the note had passed to Cook ; yet he had a right to consider the property of it as still remaining with Willis; it not being negotiable in its nature, and the transfer having been vacated. Between Cook and Twambly there could be no question. * Nor do we think that Raynes stands in a better light.

Every man, who takes an instrument not by the terms of t assignable, must take it principally upon the credit of the party from whom he receives it ; for it is always liable to be defeated by equitable circumstances, subsisting between the original contracting parties; the assignee being subject to the same equity as the assignor. Twambly’s defence against Cook would have been perfect by show ing a payment of the note to Willis, after notice to Cook that the bargain was recalled. And he has the same defence against Raynes, who, purchasing the note without the name of Willis upon it, ought to have inquired into the title of Cook, and to have applied to Willis himself, to know whether he had fairly parted with it, in order to save himself from loss.

The affirmation of Cook, however, may entitle Raynes to an action against him, that affirmation appearing to be false.

Whether the indorsement by an infant of a negotiable promissory note, or other mercantile instrument, can be avoided, so as to prejudice a bona fide indorsee, who is ignorant of the minority of the indorser, is a different question from the one now presented, and may require further consideration.

In the case brought before us by this writ, there is no error affecting the judgment, in the opinion of the Court as delivered to the jury , and the judgment must, therefore, be affirmed, with costs for the defendant in error.  