The opinioh of the court was delivered by
Collamer, J.No one should be adjudged trustee, unless the judgment would be a defence, to any subsequent action, which might afterwards be brought against him for the same debt. The statutes of 1797 and 1798, made up a congruous and consistent system. The statutes, directing the proceedings against trustees, provided, that any debt, taken by judgment from a trustee, should fully acquit him from any action brought by theprincipal debtor therefor. It is obvious that *312this statute, standing alone, and unaided by any other, would not protect the trustee from an action brought by an indorsee of the principal debtor. The statute in relation to negotiable notes, (p. 144,) however, aided this. It provided that, when sued by an indorsee, the maker might not only have offsets of all debts due him from the payee before notice of the indorsement,but could give in evidence any thing which would equitably discharge him in an action by the payee. As a judgment, taking the debt from the signer as trustee, would equitably discharge him from the payee, he might, by the very words of this provision, give this judgment in defence, when sued by an indorsee, and therefore our courts sustained actions against a maker of a negotiable note as a trustee of the payee, until an indorsement and actual notice thereof to him. By the statute of 1836, this provision in relation to negotiable notes is repealed. It is now insisted that the legislature, by this act, did not intend to alter the law in relation to trustees. It may, perhaps, be much douoted whether the individual members of the legislature fully contemplated or intended all the consequences which must result from that act. But that cannot affect the law itself. By that act they have undoubtedly put all negotiable notes on tire footing of mercantile paper in a commercial country. They have,by that act, therefore, though not so expressed, fully provided that as to negotiable notes, negotiated while current, the maker can apply no offsetts of debts due him from the payee, nor even payments actually made to the payee, if not indorsed on the note, nor can he be permitted to show entire fraud in, or total want or failure of the consideration, for which the note was given. The maker, therefore, when sued by an indorsee, who took the note while current, can no longer, in this case, make such defence as would discharge him from the payee, and, of course, cannot defend on the ground that he has been adjudged trustee of the payee. Therefore, ho cannot be considered as his trustee. The note is vested in the indorsee by indorsement and delivery,and he may maintain an action without any notice to the maker. The maker, therefore, cannot be considered trustee of the payee after indorsement, whether he has been notified or not.
In relation to notes overdue, the law merchant is entirely *313different. When a man buys a note not yet due, he is to presume it is unpaid, and it would operate a fraud upon him to permit the maker afterwards to show that he paid any part before it was due. If the note which is offered him is already due, he may well presume it is in whole or in part paid, or that it is so situated that it ought not to be paid, and he buys it at the risk of defence. Hence, in mercantile phrase, a note not due is called current, that is, it passes in the market where the maker is known to be good. If the note is overdue it is no longer current. The indorsee, it is said in law, takes it, subject to all equities; for the maker may make any defence, which would discharge him as against the payee, accruing before notice of indorsement. This will include all the former statute provided for, except offsets.— In relation, therefore, to negotiable notes overdue, the maker is to be considered trustee of the payee, until notified of indorsement, and if the trustee action - be commenced after the note is due, and before notice of indorsement, it will be sustained.
Applying these principles to this case, Safford, whose note was indorsed while current, cannot be considered trustee of Whiton, though not notified of the indorsement. John Sharp, whose note was not assigned until overdue forty-five • days, must be holden the trustee of Whiton, as he was not notified of the assignment until after the commencement of this action. As to Morgan and Downs; — When Morgan executed and delivered, and Whiton received the notes, they were binding on Morgan. This extinguished the debt for land, and Downs was no longer debtor to Whiton for the purchase. Morgan had given the notes, acting on the assuranee of Downs that he would sign them. It was like the case of Pillans & Rose v. Van Mierop, in Burrow. An agreement to accept a bill is, in law, an acceptance. Downs, therefore, very correctly signed the notes, agreeably to the contract, and its effect is the same as if signed at their date. Two of these notes were indorsed while current, and notice given before suit. Of these, most clearly, the makers are *314not trustees of Whiton. Of the other note, due on demand, they are trustees, as the same was not assigned Until overdue, and no notice until after this action.
Judgment of the county court reversed, and judgment rendered according to this opinion.