Majority
p. 346Canfield against Monger.
Headnote
Where A. neii■vers a note to b to receive the amount, and payment‘o/11® B°,tetH™n'an sSn'mentofSthe an^uthorityf8 interest, in B.; , b”dguilty'or °a refusing fo deli* yerthe note to a.IN ERROR, on certiorari to a justice's court.
This was an action of trover for a noté of about five dollars. , * drawn by one Linsey, payable to Monger, the plaintiff below,dated in the year 181Z. The defendant pleaded not guilty ;■ and, upon the trial, it appeared that a note, of the description set out in the declaration, had been delivered to one- John E„ Canfield, to receive the amount of the drawer, and, when paid, to credit and endorse the amount on a note which John E«, Canfield held against the. plaintiff and one Reuben Adams ■: that J 0 both these notes were afterwards m the possession of the defendant; but how he came by them did not appear"; that the plaintiff demanded the note drawn by Linsey j which the defendant refused to deliver up; that he then demanded that he should endorse it upon the plaintiff’s note,- which he also refused to do. At the trial, the defendant offered to give up the note to-the plaintiff, but he refused to receive it. The justice gave judgment for the plaintiff,
How the defendant below came info-possession of the note in. question, does not appear. But it is necessarily to be inferred, from the evidence, that he either received it by purchase from John E. Canfield, or, as his agent, to collect, and apply it in the samé manner as John E. Canfield was authorized to do; and" the defendant must be considered as standing-in the same skua- - tian, and clothed with the same rights,in relation to this note, as- John E. Canfield was; and the delivery of the note to him, with - directions to receive and apply it .towards payment of his own • note, would amount to an equitable assignment of it, and vest in him an interest, which the plaintiff could not defeat at his-
p. 347
pleasure. ( 1 Caines' Rep. 363 . 3 Johns. Rep. 71 .) He had an authority coupled with an interest, (1 Caines’ Cas. in Error, 15.) which the plaintiff could not devest him of, without paying the note upon which the one in question was to be applied. The defendant, therefore, had a right to retain the note, and was not guilty of a conversion, by refusing to deliver it up when demanded ; and he ought not to have endorsed it on the other note, as requested, unless payment had been received of Linsey, or it had been lost in consequence of the defendant’s negligence, of which there was no evidence. The judgment must, accordingly, be reversed.
Judgment reversed,