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 *488Tudor & 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