majority">

The opinion of tne court was delivered by

Phelps, J.

The note of Preston, which is the object of this process, appears to have been made payable, originally, to one Smith, was endorsed by him to Langley, the principal debtor, and subsequently by Langley to Moore. Notice was duly given to Preston of the first transfer, but no notice was given to him of the latter transfer, until after the service of this process, although the transfer took place before the attachment. Under these circumstances the question is raised,, whether notice to Preston is essential to complete the .transfer, or whether the at*263tachment, by this process, will overreach the assignment, by reason of the want of notice.

This proceeding, being in the nature of an attachment, and proceeding, not only in form, but in.substance, upon equitable principles, it follows that, like any other attachment, it will hold nothing, which is not equitably and legally the property of the debtor. In Massachusetts, where this process is common, it has been uniformly held, that it will not hold a chose in action, which has been previously assigned, and is not equitably and legally the property of the principal debtor, at the time of the attachment. This doctrine has always appeared to me to be most consonant to principle, although it must be admitted there are considerations of policy, which make strongly in favor of a different rule.

In Connecticut, on the other hand, it has been held, that notice of the transfer of a note is essential to the assignment, and if notice to the maker be wanting, the trustee or factorizing process will hold, notwithstanding the assignment. This rule has been adopted in this State, in preference to the Massachusetts rule, and is now, I believe, considered the settled law of the State. But this rule has never been applied to any but an assignment by the-payee. After the note, if negotiable, has passed from his bands and become transferable by delivery only, it is not subject to this process, except as against the person, who is really and equitably the proprietor of the note, at the time of the service of the process. This was decided in Greene v. Gillet, 5 Day, 485. Whatever reason there may be for the rule requiring notice, so far as the original payee is concerned, it certainly fails, when the note has obtained circulation, and passes, like a bank bill, from hand to hand. To require notice, in such case, of every transfer, would embarrass the circulation of paper — would be productive of great inconvenience, and, in a majority of cases, operate unjustly in its application. There is no propriety in taking one man’s property to pay the debt of another: and nothing reconciles me to the rule adopted in this State, except the consideration, that it may prevent frauds. But there is no precedent for extending the rule to a case like the present. In such a case, the authorities from Connecticut and Massachusetts agree. Considering the law of those States, in this particulár, reasonable and just, we are inclined to adopt it and hold, in this case, that *264notice to Preston was not essential to the assignment by Langley to Moore.

Judgment of County Court reversed, and Judgment that Preston is not trustee.

Citation profile

How this case has been treated — in progress