The opinion of the Court was delivered by

The general principles ruled in the case of The *325Northampton Bank v. Balliet (ante 311) apply here. Nothing, therefore, remains but to notice the bills of exception.

1. The court were right in admitting the testimony contained in the 1st bill, because the evidence has a direct bearing on a material question, viz: whether the defendant received the notes on which he relies as a defence before or after notice of the assignment.

2. If a different state of facts existed, the evidence of the indebtedness of Selfridge individually, or as the partner of Wilson, would be material; because, if the defendants had tendered the notes generally, without specifying to which debt the payment should be applied, a court of equity, under the circumstances of this case, would so apply it as to do justice to all parties. But this equitable principle cannot be invoked in aid of the plaintiff, where the debtor himself directs the application of the payment. He has a right, of which he cannot be deprived, to direct which debt, where he owes more than one, shall be paid. This point has been repeatedly ruled, and in a very recent case, where the whole law was reviewed.

We also think the court was wrong in leaving it to the jury to infer notice of the assignment from what took place at the bank the morning of the assignment. The court, it is true, refer to a written paper tied up with the notes, in the handwriting of the defendant, and afterwards refer the whole evidence to the jury. But this does not cure the error; for it is plain, from the charge, that the jury would be warranted in supposing that, aside of all other evidence, they would be justifiable in inferring that the defendant had notice of the assignment. We cannot, however, perceive, in what took place there, a spark of evidence of that material fact.

Judgment reversed, and a venire de novo awarded.