
    Simeon S. Goodwin versus Andrew Cunningham, Jun.
    A., a merchant in failing circumstances, assigned his property (including a valid demand on B., a merchant in Russia), to certain of his creditors, in trust for all who would execute a release to him. C., holding A.’s negotiable promissory note, remitted it to B., requesting him to stop the amount in his hands for the payment thereof. B. received the note at the same time that he received notice of A.’s failure and of the said general assignment. It was holden, that he could not retain on account of the note, in an action brought against him in the name of A. for the benefit of his creditors, who had complied with the terms of the said assignment.
    * This was assumpsit, brought to recover the proceeds [ * 193] of certain property, consigned by the house of Goodwin fy Whiting, of which the plaintiff is surviving partner, to the defendant in Russia, to be by him sold and accounted for. A trial was had before the Chief Justice, at the last November term.
    By an account of sales rendered by the defendant it appeared that a balance was due to the house on the 14th of July, 1812, equal to the sum for which the jury returned their verdict; unless a note of hand, signed by Goodwin fy Whiting, for $ 1600, payable to Robert Roberts, or order, and indorsed by him to the defendant, could be lawfully set off in this action against the demand sued.
    This action was brought for the benefit of certain creditors of the said Goodwin, who, being insolvent, on the 15th of August, 1811, by deed executed by him, assigned all the property and credits of the company, and, among others, the demand upon which this action is brought, to certain of his creditors, in trust for all who should execute a deed of release of their demands. Roberts was a creditoi who did not release ; and afterwards commenced an actior, against Goodwin fy Whiting upon the note in question, but, failing to obtain security, discontinued his suit, and sent out a notarial copy of his note, with an indorsement upon it by him to the defendant in Archangel, with a request to stop the amount in his hands, for the payment of the said note.
    This was received by the defendant at the same time that he received intelligence from the trustees of Goodwin fy Whiting’s as signment of the balance in his hands to them.
    The jury were instructed, that, if he knew of the assignment before or at the same time that he received the note, as he was under no obligation to take the note to his own account, he could not by law defeat the assignment, by appropriating the proceeds in his [*194] hands to the payment of * Roberts’s note ; and that, unless he had acquired a property in the note before he knew of the assignment, he could not retain on account of it. It appeared that there were subsisting accounts between the defendant and Roberts, in which Roberts was the debtor; but his credit then was and still remains good, and he is fully able to pay the amount of his debt to the defendant.
    The jury returned their verdict in favor of the plaintiff, upon the ground, that the note had not become the defendant’s property, but that he was the agent of Roberts, to procure payment thereof.
    The legality of the assignment ivas questioned on the part of the defendant, and the question reserved for the whole Court ; and, if it was void, and was material in support of the present action, or if the above directions to the jury were wrong, the verdict was to be set aside, and a new trial granted.
    There was a plea in bar in the nature of a set-off, to which there was a demurrer; and the note described in the plea is the same upon which the jury returned their verdict as above.
    
      Dutton, for the plaintiff.
    
      W. Sullivan, for the defendant.
   Curia.

There can be no doubt that the verdict is right. The jury were satisfied, by proper evidence, that the defendant had no property in the note which he has claimed to set off; so that, if he had brought his claim within our statutes of set-off in point of form, he would have failed for want of property in the note.

If the defendant had elected to take this note to himself, even when in Archangel, the circumstances under which he would have done it would have defeated his claim against the assignees of Goodwin 8f Whiting. He received notice of their failure, and of the assignment of this demand to the trustees of their creditors, at the same time that he received the note from Roberts, with a request to secure the balance in his hands. Now, to have purchased the note, * having no personal interest in the transaction but that [*195] of aiding Roberts, would have been fraudulent against the creditors of Goodwin & Whiting; and he could not have availed himself of the purchase.

No sufficient objection has been shown to the assignment by Goodwin & Whiting ; and, if there had been, still, the plaintiff, being the surviving partner, would maintain this action for the money due from the defendant.

Judgment according to the verdict. 
      
       [See Rev. Stat c. 96, § 10. — Ed.]
     
      
      
         Greene vs. Hatch, infra. — Jones vs Witter, 14 Mass. Rep. 304. — Jenkins vs. Brewster, 14 Mass. Rep. 291. — Holland vs. Makepeace, 8 Mass. Rep. 418. — Sargent vs. Southgate, 5 Pick. 313. — Braynard vs. Fisher, 6 Pick 355. — Hallowell and Augusta Bank vs. Howard et al, 13 Mass. Rep. 235. — Gardiner vs. Corson, 15 Mass. Rep. 504
     