
    CLARK v. ROGERS.
    Where two were joint mortgagors of a piece of land, to secure the payment of, a joint debt, and one of them, to protect the other against his liability for. tire payment of both moieties of the debt, delivered to him certain notes of hand not negotiable, to be collected, and the proceeds to be paid, over to the mortgagee, to which delivery and appropriation the promissor in the notes was assenting; — it was held that the party so depositing and appropriating. such notes could not afterwards lawfully receive payment of them from the promissor, nor release the latter from his liability to pay them to the holder.
    Assumpsit, upon three notes of hand. Plea, non assumpsit. " At the trial the defendant read to the jury a receipt describing the notes declared on, of the following tenor ; — 15 Orono, May “ 18, 1822. Received of James Rogers full pay for three notes ‘‘ of hand by him to me or order, which notes were lodged in u the hands of Reuben Haines of Topshdm, the date and amount “ of said notes are as follows,” [describing them] “ received pay “ for the same by indorsements on note, and notes' given up to ■ “ me .which the said Rogers held against me. Thomas G. Clark/ —At the bottom was this memorandum signed by the plaintiff.— w Mr. James Rogers,! have received my notes, and if it is not “' settled to your satisfaction I will settle with you, in August I shall be at Topsham.” ■
    The plaintiff then read in evidence a paper signed by said Rogers and others, of the following tenor; — “ Topsham> Novem- “ her 11,1817. Then Thomas Gl Clark lodgéd in my hands the “ following notes of ha'nd signed by James Rogers and Charles “ Eaton, according to the request oí the said Clark, Rogers, and “ Eaton, there they are to remain until they become due, after “ that the proceeds of them are to be paid over to Plumphrey Purintori on the notes given him for the payment of a mortgage “ deed of the land and privileges bought by the said Clark and M Reuben Haines in May, 1817. Reuben Haines.” Then followed a list of the notes referred to, among which were the notes' declared on, at the bottom of which were the signatures of Clark, Rogers and Eaton.
    
    The admission of this paper was objected to by the defendant’s counsel on the'ground that it had been altered in a material part' by the addition of the name of Haines long after it was executed by the others, and that this alteration was made by Haines, which they offered to prove. But the Judge over- , ruled the objection, and gave the plaintiff leave to become non-suit, subject to the opinion of the whole Court' whether the ac-" t'ion' could'be sustained."
    
      O'rr, for the plaintiff.'
    The action, though brought in the name of Clark, is for the benefit of Plaines, who is the plaintiff-in interest, claiming the notes by virtue of the instrument of November 11, 1817. Plaines and Clark had bought a parcel of land of Purinion, which they had mortgaged for the purchase money; and to secure the payment of Clark’s móiety and protect Haines, the notes in question were deposited with the latter for the purpose mentioned in the paper. And the question is, whether this is such an equitable assignment as the Court will protect against any attempt by Clark to control it? It was an assignment upon good and sufficient consideration; — for Haines had an interest in the subject-matter, being bound as mortgagor to pay thera/toie debt. The, Redemption of the land by him would enure for the benefit of 
      Clark, against whom he would have none but a personal remedy. II was also entered into with good faith. Haines had a trust; Coupled with an interest. He was by common consent made trustee for the benefit of the concern. The funds wfere- set apart at the request of Rogers, to perforin Clark's own bbligation. The contract could not be rescinded but by' the sainé parties who entered into it; and one of these was Haines. • Dunning v. Sayward, 1 Greenl. 366. Dunn vi.Snell, 15 Mass¿ 481. ' Jones v* Witter, 13 Mass. 304. It wras not material when he signed it, non that all should sign it at the samé time. It ivaS 'probably executed by the other parties, and then carried by them to Haines, in whose possession it remained till the trial. Nor was it necessary that Haines should extinguish the liability of Clark to Purinton. This was not in his power, except by payment of the money, to obtain which the notes in suit were deposited in his hands- It w7as only necessary that the funds should be appro-» printed in good faith by dark, and accepted by Haines ¡ and this was done;,
    
      Allen, for the defendant'
    The receipt offered in evidence is a complete answer to the action, unless Haines is beneficially interested as assignee of the notes. The only evidence of this interest is the paper of November 11, 1817; but this is void, having been altered in a material part, by adding the name of Haines. It was material, as making him a party to the contract, who was not so before. He was a mere depositary of the notes, without interest, and might be discharged at the pleasure of the parties. Had the money been paid to Haines, and not paid bver by him to Purinton, the paper Us altered would be evidence of itself to support an action against Haines. But without the alteration it would not.-' It was there-, fore a material alteration. Homer v. Wallis, 11 Mass. 312. Hunt b. Adams, 6 Mass. 5Í9. -
    - But if it be an immaterial alteration, and Haines really a party to the contract, yet being made by him, and after delivery, bf the instrument, it is void. Hatch v. Hatch, 9 Mass. 311. Masters v. Miller, 4 D. E. -322.
    And if it be immaterial, and rightfully made, yet Clark..had á right to release the notes, unless he had parted with his zohols 
      interest in them. Now the instrument itself contains no language of assignment, — and of course Haines’ interest in the notes in his hands must depend on the other facts and circumstances of the case. But he had paid nothing for them;- Nor had he discharged Clark from any liability in consideration of their being in his hands. The land was still under the mortgage. Clark was still liable on his notes given for the purchase money, and the land still liable to an entry for condition broken. And if Haines had chosen to pay the debt out of his own money, he might still claim of Clark a'moiety of the money thus paid. As therefore he had no legal interest, because the notes were not regularly transferred to him, — and no equitable interest, because he had’ neither paid money nor assumed any liability in consequence of their being placed in his hands, he is not entitled to the protection of the law, against the rightful owner of the notes.
    The cause being continued nisi for advisement, the opinion of" the Court was delivered at the succeeding term in Cumberland„■ as follows.
   Mellen C. J.

By the report it appears that Clark and Haines in May, 1817, purchased certain real estate of Purinlon, and gave their joint notes for the purchase money, and a mortgage of the same estate as collateral security for the payment.

It was contended by the counsel for the plaintiff that the re-’ ceipt or certificate bearing date November 11, 1817, and signed by Haines, in one place and by Clark, Rogers, and Eaton inanother place, shews an assignment of the monies due on the notes therein described to Haines, or air appropriation of those sums for the purpose of paying the debt to Purinlon, so soon as Haines should collect the same; — and that as Rogers was conusant of this assignment or appropriation, and by his signature, assenting to it; it was not competent for Clark to receive the monies due on those notes and give a valid discharge to Rogers as he attempted to do by his receipt of May 10, 1821.

The counsel for the defendant objects to the legal validity of the receipt or certificate of November 11,1817, on the ground of its having been altered by Haines by his signing his name toil for improper purposes; and even if it be not liable to objection on that account, still that it does not amount to an assignment, or appropriation, or shew any equitable interest in Haines, entitled to legal protection.

With respect to this first objection, it may be observed, that fraud and forgery are not to be presumed; and according to the facts relating to this point which are stated in the report, it .only appears that Haines signed the paper after it was executed .or signed by the other subscribers; but no circumstances attending the signature are disclosed tending to shew that it was added with fraudulent intent, or even without the consent of the other signers ; on the contrary, that part of the paper to which his name is signed is so drawn up, as evidently to shew that if was intended to be signed by one person only, and from the notes being deposited with him, that person must have been Haines. The language of the receipt or certificate is, “ Then Thomas G. Clark lodged in xny hands,” &c. For these reasons we are not disposed nor at liberty to consider the contract expressed in this paper as destroyed or impaired by the signature of Haines, under the circumstances of the case.

The remaining question is, what is the effect of the receipt or certificate above mentioned ? If it be in legal contemplation an assignment or appropriation of the sum due on said notes to Haines, for the purpose of being paid to Purinton, in satisfaction of the joint notes and mortgage which he held, then Clark had no such controling power over the notes as he attempted to exercise ; he had no right to discharge Rogers arid thereby defeat the arrangement which all parties had made.

To render the assignment .or appropriation a valid one, it must appear to have been made in legal form. The notes which were deposited with Haines do not appear to have been negotiable; or assigned by any instrument in writing other than the above mentioned receipt or certificate,, which states the understanding and object of all concerned. But the notes were delivered over tó Haines for the purposes contemplated; and we apprehend, according to the cases Mowry v. Todd, 12 Mass. 281, and Jones v. Witter, 13 Mass. 304, such an assignment is valid, if made on good and valuable consideration. To ascertain the consideration, we must have recourse to the above certificate. By that it appears to have been the object of those who signed it, to place the notes in the hands of Iiaines, that he Plight be able to collect the monies'due on them; and thence realize funds sufficient to pay Clark's proportion of'the sum due to Purinion. In this mahner, it must be understood, Iiaines was to be secured against the eventual payment of any thing more than Ais own proportion' of the debts. In other words, Clark deposited the notes in the mahner above mentioned with Iiaines in the nature of a pledge, and as collateral security for the benefit and safety of Haines. — In this view of the subject, Haines certainly had an equitable interest in the sum due on the 'notes, Similar to what any pawnee or mortgagee of personal property has; an interest deserving legal protection, and .one which Clark had no-right to destroy or impair; in contravention of his own agreement- and that of the others'interested. And as Rogers was a party to this agreement, he had notice that the notes were to be paid to Haines, and not to Clark. After this notice, Rogers must be considered as '-paying the money to Clark in his owri Wrong. Of course the payment cannot avail'him'in' this action; nor can Clark's discharge have any effect; Clark, it is admitted; ne'Ver having paid his part of the joint debt to Purinion.

For many years courts of justice have been gradually becoming more and more inclined to’protect equitable interests; less form is necessary now than formerly’as to the mode of creating such an interest; the object has been to ascertain that it is an interest founded in equity and‘justice and oh good arid adequate consideration. The correctness of this-position is in part proved by the cases of Perkins v. Parker, 1 Mass. 123. Dix v. Cobb, 4 Mass. 508. ‘'Brownc v. Maine Bank, 11 Mass. 153. Quiner v. Marblehead Insurance Company, 10 Mass. 482. Mowry v. Todd and Jones v. Witter, before eited ; and particularly Dunn v. Snell, 15 Mass. 481.

In the case before us, Clark by his receipt has attempted unjustly to destroy the'effect of an equitahle arrangement; to which he was a party, and thereby defraud Haines, whose interests this very arrangement was made to protect. It is the ■ business of a court of justice to prevent'the success of all such experiments. — We are satisfied that the nonsuit must be sot; aside. . •* ‘ ■ ¡

Nonsuit set adds..  