The defendants, having, in good faith, paid, iu the suit in which they were summoned as trustees of the plaintiff, the amount due him, are protected by such payment, unless they were notified of the assignment to Halpin.

The record of the assignment in the office of the town clerk of Fitchburg was not equivalent to notice to the defendants. The St. of 1865, e. 43, § 2, applies only to cases in which earnings are attached by the trustee process. In such cases no assignment of future earnings is valid against a trustee process unless it has been recorded. This provision is for the benefit of attaching creditors. But the third section provides that “ such record shall not affect the rights or liability of the person or corporation from whom such earnings are due, otherwise than is provided in section two of this act.” It is clear that a record of an assignment does not, under this statute, operate as a constructive notice to the person from whom the earnings assigned are due, so as to affect bin liability in cases to which the statute is not applicable.

It was a question for the jury whether notice of the assignment was in fact given to the defendants. At the trial Jaquith, an *206agent of the defendants, testified that Halpin presented to him an assignment of the plaintiff’s wages, that he told Halpin that if it was sent to the general office of the defendants, the plaintiff would lose his place, and thereupon Halpin took the assignment and went away. This was the only evidence of notice to the defendants. It was competent for the jury, upon this evidence, to find that Halpin did not intend that notice should be given to the defendants, but intended to waive his assignment. If the understanding between him and Jaquith was that he was not to set up his assignment, and Jaquith was thereby induced not to send the assignment or notice of it to the officers of the defendants, there was no notice to them.

There was evidence in the case from which it was competent for the jury to find that the agency of Jaquith was such that notice to him would bind the defendants; but it was for the jury to decide whether Halpin intended to and did give notice to Jaquith, or whether he intended to waive and withdraw his assignment. As this question of fact was not passed upon, and the presiding judge ruled as matter of law that the notice was sufficient, we think there must be a new trial. Exceptions sustained.