
    Green and Townsend against Canfield Gillet.
    
      A., being indebted to B., a resident of the city of J\ York,on the 15th of September, 1810, made his promissory note, at Derby in this state, payable to the order of C., in 138 days, at the Derby Bank, for 2000 dollars; which was by C. endorsed to B. or his order, and which was, thereupon, immediately, delivered to him in payment of his debt. On the lstof October, 1810, B. assigned the note to the Merchants’ Bank, by whom it was received and discounted; of which last assignments, had no notice. Thenotewas, afterwards, endorsed to the Derby Bank, for collection. On the 5th of January, 1811, D. commenced a sHit, by process of foreign attachment, against B., and a copy was duly left in service with A., as the agent and debtor of B. After judgment and return of execution, on a tcire-facias against A., it was held, that he was not the agent and debtor of B., within the meaning of the statute, tit. 14. c. 3.
    
    MOTION for a new trial.
    This wras a scire-fadas against Gillet, as garnishee in a process of foreign attachment.
    On the 5th of January, 1811, the plaintiffs commenced their suit by foreign attachment, against'!?, and A. Townsend, returnable to the Ncw-Haven county court; and on the same day, a copy was duly left in service with the defendant, as their agent, &c. At the next June term of the court, the plaintiffs recovered judgment against E. and A. Townsend, for the sum of 8976 dollars, 25 cents, and costs; and on the 27th of June, 1811, took out execution, with.which, on the 22d of August, 1811, a demand was made, by a proper officer, of the defendant, for the moneys and effects of E. and A. Townsend in his hands. The defendant refused to pay any thing, or to turn out any effects, to satisfy the execution ; and the officer returned it unsatisfied.
    On the 15th of September, 1810, at Derby, in this state, the defendant, for a debt due from him to E. and A. Townsend, gave a note, of which the following is a copy : “ Derby, September 15,1810. One hundred and thirty-eight days after date, I promise to pay to the order of Messrs. Norton & Bush, at the Derby Bank, two thousand one hundred and thirty-one ⅛⅛ dollars, value received. Canfield Gillet.” Norton & Bush, on the same day, endorsed this note, as follows : “ Pay Messrs. E. and A. Townsend, or order. Norton & Bush.”
    
    They then delivered the note back to the defendant; and he immediately delivered it to E. and A. Townsend, who, at that time, were merchants, residing in the city of New-York. 
      On the 1st o( October, 1810, E. and ,4, Townsend endorsed and assigned (he note to the Merchants' Bonk, in Neiv-York, who received and discounted it, but did not give the defendant, nor did he, in any way, receive notice or information, that it was endorsed or assigned to them, until after the copy was left in service with the defendant, although there was sufficient time for that purpose, between the assignment and the service. The Merchants' Bank endorsed the note to William Lcffingwcll, and be endorsed ⅜ to tho Derby Bank. for collection ; of which the defendant was- notified before the note became due.
    On these facts, the only question in dispute between the parties, was, whether the defendant, at the time the copy was left in service with him, was so indebted to E. and A. Townsend as to entitle the plaintilfs to a recovery. The court decided, that the plaintiff» were not entitled to recover; and that the defendant was not the debtor of jK. and A, Townsend, when the copy was left in service with him, although notice of the assignment to the Merchants' Bank was not given before that time. In pursuance of this decision, the jury-found a verdict for the defendant ; and the plaintiffs moved for a new trial, on the ground that the court had mistaken the Saw, The questions arising on this motion were reserved for the consideration and advice of the nine Judges.
    
      Staples and Bristol, in support of the motion, contended,
    That the note in question, having been made in (his state, prior to the act of October Session, 1811, making notes negotiable, was, originally, dearly not a negotiable instrument; that, the subsequent assignment in Ncw-York could not alter its nature, in the view of our courts, so as to affect the right* of parties in this state; and that its having been made payable at the Derby Bank, and sent there for collection, made no difference, as it was not discounted there. The note, tfc ■■ was a chose in action, to be governed by the same rules as all other chases in action. They relied upon Tudor & al. v. Perkins, 3 Days Rep. 364. 377. as applicable to chose* m action generally, and as having, therefore, settled the quts-lion. The court say expressly, In (he case of an assignment of a bond, or note of hand, there must be a delivery of the bond or note to the assignee, and notice of the assignment must be given to the obligor or promissor ; for, until mat is done, the obligor or promissor remains a debtor to the obligee or promissee
    
    
      N. Smith and Twining, contra, contended,
    That all the interest, legal and equitable, which E. and A. Townsend had in this note, or in the debt secured by it, passed, on the assignment and delivery of it, to the Merchants’ Bank, without notice to the maker. They cited Dix & ah v. Cobb & al. 4 dlHep. 508. Wakefield v. Martin & al. 3 Mass. Rep. 558.; and endeavoured to distinguish this case from that of Tudor & al. v. Perkins.
    
   Smith, J.

This was a scire-facias, brought for the purpose of recovering a debt due from E. and A. Townsend to the plaintiffs, on the ground that the defendant was a debtor to E. and A. Townsend ; and the only question, which arose at the trial, was, whether the defendant was so indebted.

The defendant, for a debt due from him to E. and A. Townsend, at Derby in this state, executed his note, payable to the order of Norton & Bush, and having procured their endorsements, deliverd the same over to E. and J. Townsend, who were then at Derby. Soon afterwards, at New-Yorlc, E. and A. Townsend endorsed the note over to the Merchants' Bank, who, thereupon, received and discounted the same, hut gave no notice ¡hereof to the defendant, until after copies were left in service in the original action. Whereupon the i ouvt decided, and gave it in charge to the jury, that the defendant was not a debtor to E. and A. Townsend, at the time the copies were left in service. The question for this court to decide, is, whether that charge was correct.

'Idle plaintiffs’ counsel insist, that the assignment to the Merchants’ Bank was incomplete ; arid that the defendant remained a debtor to E. and A. Townsend until notice of such assignment was given to the defendant; and the case of Tudor & al. v. Perkins, 3 Day's Rep. 364. was relied on a* being an authority in point. But though Í mean not to shake, the authority of that case, in the ¡east, 1 think that the charge given, by my Brethren on the circuit can 1m: fully supported. It appears, that the endorsement by Norton ¿j Push to E. and A, Townsend was sufficiently known to the defendant, because it was done by his procurement; and E. and A. Townsend, being assignees in this state, where notes were not negotiable, held nothing hut an equitable interest, in the note, which might be transferred, without any additional notice. It is enough that the maker has notice, that the note has passed out of the hands of the payee. There is no person, except the payee, to whom payment could exonerate the maker from the claim of an actual holder of the note. Whenever, therefore, a note has been once assign* d, and notice given to the maker, this deprives him in equity of the right of making payment to the original payee, and compels him to hold the money in trust for the equitable owner and holder of the note. The mere sale and delivery, therefore, is sufficient to destroy the equitable Ínteres! of an assignee ; though it would npt destroy the legal inteiest of the payee. wilhout notice given to the maker.

But again, this note in the hands of E. and A, Townsend. when in New-York, was, in its form, such as, by the laws oi that state, are negotiable; and the assignment of it to the Merchants' Bank, must be governed by the laws of that state This assignment, therefore, by the laws of the state of New-York, vests an absolute property in the Merchants' Bank. without any notice given to the maker ; so that, on cithc, ground, I should not advise a new trial.

The other Judges were of the same opinion, except Br »\ % ard, J., who dissented.

New trial not to be granted  