At a subsequent term the opinion of the Court was delivered by
Parris J.The note in question is claimed by both parties as creditors of Thomas J. Forhes. On the 8th of September, Thomas deposited it with William Forbes to collect, with direc*453tions to pay over the proceeds to Fling, the defendant’s assign- or. It remained in William’s hands uncollected and without any notice having been given to Fling, or his assignees, only three days, until the 11th of September, when Thomas revoked his directions as to the appropriation of the proceeds of the note, and assigned the note itself to the plaintiff. If he had the power to do this the plaintiff acquired a title to the note and must prevail.
It is contended, that the transaction between Thomas and William, on the 8th of September, was such an assignment of the note as constituted William the trustee of Fling, and divested Thomas of all interest in the note, and power to control its collection or appropriation. If there was such an assignment as vested the property in William, in trust for Fling, then Thomas had no remaining interest, and of course could convey nothing to the plaintiff, and William, as the agent or trustee of Fling, would be accountable to him for due fidelity in collecting the note, and for the proceeds when collected.
But we think it is not to be viewed in that light. From the language of the receipt, it is manifest that the property in the note did not pass to William,, either in his own right or as trustee ; but remained in Thomas. William had no interest in the debt, and consequently could not sue as indorsee. The order which he held on Daniel, might or might not be accepted.. If accepted, his remedy would be against Daniel as acceptor ; if not accepted, his remedy would be against Thomas as drawer. The receipt makes no reservation of any claim upon the note by William or by Bradbury, arising out of the orders drawn in their favour by Thomas. No person can sue as indorsee, unless he be the owner of the note, or has some legal or equitable interest therein. Thatcher v. Winslow, 5 Mason, 58.
It is unnecessary in this case to enter upon an examination of the question, whether an assent to an assignment, by a creditor who is clearly to be benefited thereby, may be presumed so as to render the assignment valid against subsequent attaching creditors, as there was here no attempt to assign. No words of assignment or conveyance are used. The defendants’ counsel contended, that an assent may be presumed, and cited a *454number of cases in support of his position. From the case of Russell v. Woodward. 10 Rick. 408, it would seem, that in Massachusetts an assignment would not be valid to pass the property, unless there be an express assent by the creditor, who claims under it.
Suppose, instead of a note Thomas had deposited some article of merchandize with William, with directions to sell it, and pay the proceeds to the defendant in this action. In what capacity would William act in making the sale ? Undoubtedly as the agent of Thomas. The latter would be considered as the vendor and accountable as such to the purchaser. Until the sale, the chattel would be liable to attachment by the creditors of Thomas, and he might revoke his direction to sell, or in the case of the note, to collect and appropriate at any time before the power granted had been executed ; — as in Bristow v. Taylor, 2 Stark. Rep. 50, where partners, on the dissolution of their partnership, empowered an agent to receive and pay the joint debts due to and from the partnership, and a debtor to the firm acceded to the arrangement and promised payment of his debt to the agent, yet it was held that one of the partners, before payment of the debt, might countermand the authority to receive it.
Neither does the principle apply in this case which was recognized in Lanfear v. Sumner, 17 Mass. 110, cited in the argument, that where the same goods are sold to two different persons by conveyances equally valid, he who first lawfully acquires the possession, will hold them against the other. Here is a sale to one person only, and the purchaser is attempting to recover the article sold, from those who obtained possession from the vendor’s agent after his authority, as such, had been revoked, and they knew it.
By the assignment of the 11th September, the general property in the note passed to the plaintiff; and as he has proved a conversion by the defendants, he is entitled to a remedy under this form of action, although the note did not actually come into his possession. 2 Saund. 47, a, note 1 ; Bac. Abr. Trover, C.; 1 Chitty Pl. 150.