#### Eib v. Martin. Pindall’s Ex’x v. Eib.

March, 1834,

Richmond.

(Absent Tucker, P.\* and Cabell, J.)

Equitable Assignment — What Constitutes — Sealed Promise to Pay Out of Particular Fund When Collected.† — In 1805, M. by obligation under seal, promises to pay W. $120, out of note of E. to H. payable in 1807, so soon as the money can be got from *59E. — tlie note of E. to H. haying1 been assigned by H. to M. and being then held by him : Held, this obligation of M. to W. is no assignment or transfer of E.’s note to W. and gives him no claim, at law or in equity, against E.

Chancery Practice — Matter Appearing in Answer Only —Decree for Plaintiff on.‡ — If matter appear in the answer of a defendant in equity, which is nowise alleged in the bill, it cannot justify a decree for plaintiff against defendant, though it might have been ground for such decree, if it had been alleged In the bill; per Brockjctbrough, ,1.

In January 1805, Adam Hickman and William Maulsby of Harrison county, being joint owners of a parcel of land in Harrison, called Barkley’s place, Hickman acting for himself and as agent for Maulsby, went to Pennsylvania, and there made a contract with Jacob Eib, then of York x'county in that state, whereby it was agreed, that Hickman and Maulsby should sell and convey Barkley’s place to Eib, and that Eib, in consideration thereof, should convey to them a parcel of land he held in York, and pay them 800 dollars, upon condition that if Eib should, upon a view of Barkley’s place, be dissatisfied with the bargain, he should be at liberty to rescind it. T’he 800 dollars was to be paid in three instalments; for which Eib executed his bonds to Hickman, all dated the 24th January 1805, one for 230 dollars, another for 340 dollars, and the last (which was payable the 1st April 1807) for 230 dollars. Hickman, on his return home, assigned the two last bonds to Maulsby, retaining the first to himself. Eib, having come to Virginia, and examined Barkley’s place, and being disappointed in its quality and value, availed himself of the condition in his contract for the purchase of it, and rescinded the bargain. Whereupon, a new contract was made between Hickman and Eib, in July 1805, whereby Hickman agreed to sell and convey to Eib another parcel of land in Harrison, called Carpenter’s place, of which Hickman was the sole owner; in consideration of which Eib was to give him his land in York at the agreed value of £550. Pennsylvania currency, and to pay him a sum of money; and it was expressly agreed, that the contract of January 1805, for the sale of Barkley’s place to Eib, should be cancelled. In pursuance of the contract of July 1805, Eib conveyed his land in York to Hickman, and paid him the money in addition which he had agreed to pay for Carpenter’s place, and Hickman surrendered to Eib his bond for 230 dollars which he himself held, and conveyed Carpenter’s place to him. Maulsby was informed of the rescission of the first contract, and of the terms of the second contract; and acknowledged, that it was his duty to give up the two bonds of Eib which he held, and to look to Hickman for the amount, which he said had become due from Hickman to him, in the course of these dealings: but instead of surrendering Eib’s two bonds to be1 cancelled, he had in fact assigned the bond of Eib for 340 dollars to William Martin, and he retained the *other bond for 230 dollars, payable the 1st April 1807, in his own hands.

Maulsby’s reason for retaining this last bond, was, that he had, before the contract of January 1805 was rescinded, executed the following obligation to Adam Weaver: “I promise to pay or cause to be paid to Adam Weaver &c. the sum of 120 dollars, to be paid out of a note of Jacob Eib to Adam Hickman, dated the 24tb January 1805, and payable the 1st April 1807, as soon as the said money can be got from Eib, — for value received. Witness my hand and seal this 8th March 1805.” This obligation was, in September following, assigned by Weaver to Asher Lewis, and by Lewis, in January 1806, to Jesse Martin.

William Martin, to whom Maulsby had assigned the larger bond of Eib, that for 340 dollars, brought a suit upon it, against Eib, and recovered judgment, in the district court of Monongalia at its spring term 1806. And in June 1806, Eib exhibited a bill in chancery, in the county court of Harrison, against Hickman, Maulsby, and William Martin the assignee, setting forth all the facts of the transaction as above stated; and praying an injunction to restrain the assignee Martin from executing his judgment at law, and that Maulsby might be compelled to surrender his other bond for 230 dollars to be cancelled. Hickman did not controvert the material facts alleged by Eib. They were controverted by Maulsby, who insisted that he had a right to the two bonds of Eib which Hickman had transferred to him, and to enforce payment thereof from Eib; and if he had not, yet, he insisted, his co-defendant Hickman had become his debtor, in the course of the transactions, to the amount of Eib’s two bonds, namely, 570 dollars. Eib proved all the facts alleged in his bill, and was clearly entitled to the relief he prayed ; but, instead of giving him such relief, the county court, at its September term 1810, decreed, that1 Hickman should pay Eib 570 dollars, the amount of his two bonds, with interest from the dates of the bonds, and dismissed the bill as to Maulsby and his assignee Martin. From this decree no appeal was taken.

*In the mean time, namely, in March 1808, the suit which is the sub- . ject of the appeal of Eib against Martin, had been commenced. It was a bill in chancery exhibited in the county court of *60Harrison, by Jesse Martin against Eib, Maulsby, Weaver and Lewis, setting forth the obligation executed by Maulsby to Weaver of the 8th March 1805, whereby Maulsby bound himself to pay Weaver 120 dollars, out of the bond of Eib to Hickman [the bond for 230 dollars] payable the 1st April 1807, as soon as the money could be collected from Eib, and the assignments of that obligation by Weaver to Lewis, and by Lewis to the plaintiff; and praydng a decree for the 120 dollars with interest against the defendants, or such of them as was in equity bound to pajr the same.

The defendant Lewis put in his answer to the bill, in May 1811. He objected to the jurisdiction of the court, insisting, that if the plaintiff had right he had a plain remedy at law. He further insisted, that he was nowise bound to pay the money demanded, and that Maulsby, if any one, ought to pay it; and he exhibited the record of Eib’s suit in chancery against Hickman, Maulsby and William Martin, viz. the suit between those parties, brought in June 1806, and decided in September 1810.

The defendants Maulsby and Weaver failed to answer, and proceedings were had against them as defendants in default.

But there was no process sued out, and no proceedings whatever had, in the county court, against the defendant Eib; and, for aught that appeared, he was wholly ignorant of the existence of the suit, so long? as it remained in the county court.

The case lingered in the county court till March 1823, when it was removed by certiorari to the superiour court of chancery of Clarksburg; and there, at March rules 1825, the suit was dismissed as to the defendant Eib (as the case was at the rules, this dis-mission must have been ordered by the plaintiff’s attorney), and an order of publication was made against the defendants Maulsby and Weaver, who *were non-residents; so that the suit was now prosecuted only against those two defendants and Lewis who had answered. Upon a hearing in May 1826, the chancellor dismissed the bill as to the defendant Lewis, remanded the cause to the rules, and gave the plaintiff leave to amend his bill by reinstating Eib as a party defendant thereto.

Ho amended bill was filed, and no process was sued out against Eib ; but he, having now got information of the existence of the suit, appeared of his 'own accord, and put in his answer to the original bill, in which he first detailed all the facts of the transactions with Hickman and Maulsby in 1805. He then exhibited the record of the suit which he had brought in 1806 against Hickman, Maulsby and William Martin, and which was decided in 1810; and he said, that the decree in that cause, whereby it was adjudged that Hickman should pay him 570 dollars, and that his bill should be dismissed as to Maulsby and Martin, was arranged between his counsel Mr. Jackson, and Mr. Pindall, the counsel for Maulsby; that that decree never was communicated to him; that he had never received any thing from Hickman under the decree; that he had discovered, that a ca. sa. was sued out upon it against Hickman, and that Hickman paid the debt to Pindall, the attorney of Maulsby, by allowing him a credit for the amount in part of the purchase money of land sold by Hickman to Pindall; that Pindall was also the counsel and attorney at law of Jesse Martin in the present suit, and that it was owing to his knowledge of the facts, which exempted Eib from all liability, that he had concealed those facts from Eib, had never ordered any process against Eib in this suit, and had dismissed it as to him in March 1826.

At the same time that Eib put in his answer to Jesse Martin’s bill, he exhibited a bill (in the nature of a cross bill) against Martin, Maulsby, and the executrix of Pindall then recently deceased; wherein he set forth the facts stated in his answer to Martin’s bill, touching the receipt by Pindall from Hickman, of the 570 dollars which had *been adjudged to Eib by the decree of September 1810, and prayed, that if he himself should be held liable to Martin’s demand, Pindall’s executrix should be compelled to indemnify and exonerate him, by paying the money out of her testator’s estate.

To this bill, Pindall’s executrix pleaded the statute of limitations; but the chancellor held, that it was not a bar. And then she and Martin both put in answers, contesting Eib’s claim to the relief prayed in his bill. The bill was taken pro confesso against Maulsby.

It appeared, from the proofs in this cross cause, that in the suit brought by Eib against Hickman, Maulsby, and William Martin, in 1806, Mr. Jackson was the attorney at law for Eib, and Mr. Pindall the attornej7 at law for Maulsby: that the decree in that suit of September 1810, in favor of Eib against Hickman, for 570 dollars, was transferred by Jackson to Pindall for the benefit of Maulsby, to whom William Martin had re-assigned Eib’s bond for 340 dollars, and so transferred, in consideration of Pindall’s undertaking to procure a release to Eib from all responsibility on his two bonds for 340 and 230 dollars, which had been assigned by Hickman toJVtaulsby in 1805 : that Pindall was not only Maulsby’s attorney, but Maulsby had assigned to him part (if not the whole) of his claims on Eib’s bonds: that a ca. sa. was sued out on Eib’s decree of September 1810 against Hickman, and Hickman was taken in execution : that, in October 1810, Pindall had received from Hickman full satisfaction of that decree, and released Hickman from custody: and that all accounts arising out of these transactions between Maulsby and Pindall, had been settled.

The two causes of Jesse Martin against Eib and others, and of Eib against Pindall’s executrix and others, were finally heard at the same time.

In the first case, the chancellor decreed, that Eib should pay Martin 120 dollars, with interest from the 1st April 1870, and all the costs of that suit; from which decree Eib appealed to this court.

*In the other case, he decreed, that the executrix of Pindall should reimburse to Eib the sum of 120 dollars with interest from April 1807, and the costs, adjudged,to Martin against Eib by the decree in the first case; and that she should, *61within twelve months, procure a release from Maulsby to Eib of the two bonds for 340 and 230 dollars, or of any judgments he might have recovered thereon; and upon her failure to do so, liberty was reserved to Eib to resort to the court for further relief. And from this decree Pindall’s executrix appealed.

The causes were argued here by Johnson for Eib, appellant in the first case and appellee in the other; by Stanard for Pindall’s executrix, appellant in the second case, and by W. Robertson for Martin, appellee in the first case.

*

He decided the cause in the court of chancery.

†

Equitable Assignment — What Constitutes — Promise to Pay Out of Certain Fund —A mere promise or agreement to pay a debt out of a designated fund, when received, does not give an equitable lien upon the fund, nor operate as an equitable assignment of it. Something more is necessary. To constitute an equitable assignment, there must be an assignment of transfer of the fund or some definite portion of it, so that the person owing the debt or holding the fund on which the order is drawn can safely pay the order, and is compellable to do so, though forbidden by the drawer. Hicks v. Roanoke Brick Co., 94 Va. 745, 27 S. E. Rep. 596, citing among others, the principal case, Clayton v. Fawcett, 2 Leigh 19, Christmas v. Russell, 14 Wall. 69, and Trist v. Child, 21 Wall. 441.

In Feamster v. Withrow, 9 W. Va. 296, 313, certain *59debtors by their writing acknowledged themselves bound to their creditor for a certain specified amount and promised to pay the debt as soon as the money could be made on a judgment then in the hands of the sheriff in favor of one of said debtors. It was held that the said writing did not. by any of its provisions, have the effect to transfer, or assign, the said judgment debt to the said creditor either at law or in equity. As authority for this decision, the principal case. Dickenson v. Phillips, 1 Barb. (N. Y.) 454, and Hoyt v. Story, 3 Barb. CST. Y.) 262, are cited.

See further, monographic *note,*on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.

‡

Chancery Practice- Bill — Allegations.—It is an elementary principle of equity that every fact essential to the plaintiff's title to maintain the bill and obtain th e relief must be stated in the bill. McGugin v. Ohio R. R. Co., 33 W. Va. 71, 10 S. E. Rep. 39, citing Parker v. Carter, 4 Munf. 273 ; *Rib*v. *Martin,*5 *Leigh*141.

BROCKENBROUGH, J.

The case of Eib against Martin is to be first considered. And, in that case, the first question is, Whether Martin, upon his own shewing in his bill, ever had a right to make Eib a party defendant to it? Whether Maulsby’s obligation of the 8th March 1805 (on which Martin’s claim is founded) to pay Weaver 120 dollars, out of Eib’s bond to Hickman (then held by Maulsby) dated the 24th January 1805, and payable the 1st April 1807, so soon as the money could be got from Eib, —'can be regarded as an equitable transfer or assignment from Maulsby to Weaver, of Eib’s bond, or any part thereof? If it was not such an assignment, then Eib was never responsible to Weaver, or his immediate and remote assignees Eewis and Jesse Martin. This point was discussed in Clayton v. Eawcett’s adm’rs, 2 Eeigh 19. In that case, there was an actual order drawn by Eawcett on Baker, who held the bonds of Carlisle due to Eawcett, in which he requested Baker, as soon as he should collect the money due from Carlisle, to pay it to Clayton, as he owed him about 200 dollars of the money; but there was a restriction in the order, namely, that it was to be paid to Clayton, “if I (Eawcett) should not happen with you.” That order was held *not to be an equitable assignment by Eawcett to Clayton, of any part of Carlisle’s debt to him : the restriction limited the power of Clayton to receive the money, to the case of Eawcett’s being absent, and the order was merely directory to Baker, and an indication to him, that Clayton was to supply the place of Eawcett, in case of his absence, and to receive the money, not for himself but for Eawcett, the drawer: and, therefore, it was held, that as Clayton held no lien on the money, it should be paid to Eawcett’s, administrators to be paid to his creditors in a due course of administration. Now, the letter or order in that case, approached much nearer to the character of an assignment, than the obligation of Maulsby in the present case. Here was no order of any kind drawn by Maulsby, either on Eib, the obligor in the bond of January 1805, or on Hickman to whom it was payable; nor did Eib ever agree to pay any part of the money to Weaver, the obligee in Maulsby’s obligation, or to Eewis or Martin, the successive assignees thereof. The obligation of Maulsby was not a draft on any particular fund in the hands of any other person, but a personal obligation on himself to pay 120 dollars to Weaver or his assigns, as soon as he should receive his money from Eib. If Eib did not pay his debt at the time stipulated, or refused to pay, then Maulsby was probably bound to use due diligence to recover the money from Eib, and on his failure to use such diligence, or on his failure to receive the money, the obligation of Maulsby to his obligee Weaver became absolute, and the plaintiff Martin might sue Maulsby at law on his own obligation; or, on the principle of Winn v. Bowles, 6 Munf. 23, he might have sued Maulsby in equity, and made Weaver and Eewis parties defendants to his bill. But there was no privity between Eib and either Weaver, Lewis, or MarHn; and consequently he was not bound either at law, or in equity, to pay them. He was only bound to his own obligee or his assigns. Eib, then, might have demurred to Martin’s bill, if he had been a party; but in fact he was no party to it. When Martin commenced his suit, his process of subpoena named only Maulsby and *Lewis, and although his bill, which was filed more than a year afterwards, did indeed name Eib as a party; yet no process was ever served on him, nor did he ever appear in the suit, and the plaintiff actually dismissed his suit as to him, in 1825. He was directed to be made a party by the order of the chancellor of September 1826, giving the plaintiff leave to amend his bill by making him a party. This permission and order of the court was made, it is believed/ in consequence of the development made by the copy of the record in Eib’s suit, brought in 1806, against Hickman and others, which had been referred to in Asher Lewis’s answer in this suit.

Eib, being thus made a party, promptly answered; and I am of opinion, that as he then appeared without process, he must be considered as having waived the irregularity of the former proceedings, so far as to make him a defendant, and to subject him to' costs from the time he was so made a party, but no further. If it was proper to render a decree against Eib on the merits, yet it was not proper to have subjected him to the payment of the costs incurred during the eighteen years that the suit had been pending before he was a party.

■ Although Eib answered, the plaintiff Martin did not amend his bill; so that if he recover at all, he must stand on the, original bill, and can only recover according to the allegations contained therein. He cannot recover on any new ground which did not exist at the time he filed his bill, or which was shewn by the defendant’s answer to exist, but of which he did not avail himself, by alleging, in his new or amended bill, the newly discovered matter, even although it might have been sufficient, if alleged and proved, to entitle him to a decree.

The new matter developed by the answer, consisted in the history of the transactions between Eib on the one part, and Hickman and Maulsby on the other, touching the contracts for the sale of Barkley’s place to Eib, and the rescission thereof, as alleged and proved in Eib’s suit against Hickman, Maulsby and others, brought in 1806, and decided *in 1810. The decree in that suit, instead of directing, that the two bonds, which Eib had executed to *62Hickman, under the contract that was afterwards rescinded, and which Hickman had assigned to Maulsby, should be delivered up to be cancelled, adjudged, that Hickman should pay to Eib 570 dollars, the amount of the two bonds that had been assigned to Maulsby, with legal interest; which decree was rendered in September 1810, after Jesse Martin, the plaintiff in the present suit, had filed his bill. It is now insisted by the counsel for Martin, that as Eib obtained that decree in 1810, he either received from Hickman the amount of the two bonds held by Maulsby, or that he might have received it, and if he did not, it was his own laches; that, in either case, he was liable to pay to the holder of his two bonds the amount due on them; that he stood in the place of Maulsby, and was bound to pay over the 120 dollars due on the obligation executed by Maulsby to Weaver, on which this suit is brought; for that he had got hold of the fund out of which that money was to be paid, and having it, he ought to be considered as a trustee for Weaver or his assigns, and held liable to the appellee, Jesse Martin, for the amount. All this may be true, and yet, in my opinion, the appellee ought not to have recovered, unless he had alleged such a case, and broitght forward such a claim, in his bill; which he has not done.

In the present case, it would be peculiarly improper to allow such a recovery to the appellee. If the appellant was to be condemned from his answer to allegations not made, he ought at least to have had the benefit of the whole answer. The appellee ought not to have been allowed to fasten on the decree of 1810, exhibited in the answer, without giving any weight to the rest of the answer, in whicti the appellant swears, that he never knew of that decree, nor received any money under it; that Pindall, the counsel of Maulsby, one of his adversaries in that suit, claimed the benefit of the decree either as counsel of Maulsby, or his assignee; that Pindall, in one of those characters, put Hickman in jail under the decree, forced the money from him, *and appropriated the proceeds of the decree to his own use. If the answer is to be taken as true as to the fact of the decree being rendered, it must also be taken as true as to the appellant’s ignorance of its existence, and as to the deception, fraud, and crying injustice, perpetrated by Pindall. If the appellee had alleged in his bill, that Eib had obtained the decree against Hickman, and .that he had thereby received the fund out of which his demand should be paid, or that he might have received it but for his own laches, Eib might have relied, in his answer, on the facts just mentioned; and so far as his answer was responsive to such charges in the bill, he would have thrown the burthen of proof on his adversary, and so far as it brought forward affirmative matter not responsive, he might have supported it by proof. He might have proved, that the decree was a collusive and fraudulent one in which he had no part; that he was ignorant of it, and that not he, but Maulsby, or his assignee or counsel, had received that fund. He. might have shewn, that by the delay of the appellee for sixteen years, he, the appellant, had lost his remedy against Pindall, for that to any cross bill which he (Eib) might exhibit, Pindall might plead the statute of limitations, or rely on the staleness of the transaction to defeat the claim. But the allegations not having been made in the bill, the appellant could not be allowed to disprove them, however sufficient were his materials for that purpose.

I am of opinion, that the decree be reversed, and the bill dismissed.

CARR, J.

We are first to consider, whether Maulsby’s obligation to Weaver, on which the appellee Martin’s claim is founded, gave Weaver or his assignees, any personal claim upon Eib? any right to sue him either at law or in equity? By that obligation, Maulsby acknowledged himself indebted to Weaver 120 dollars, and promised that he would pay him that debt, out of Eib’s bond to Hickman, which he held by assignment from Hickman, as soon as the money might be got from Eib. Got by whom? by Maulsby, assuredly: he ^retained the bond, with the legal title; and he promised, that he would pay the money, when he should get it of Eib. Is this a transfer of the bond or of the debt due from Eib, or of any part of it? Nothing like it, but a mere designation by the debtor, of the fund out of which he meant to pay the debt; and, so far from intending to give to his creditor any draft or order on this fund, he expressly reserves to himself the whole control over it, as respected his own debtor, and, especially, the exclusive right of receiving it himself. The case of Clayton v. Fawcett’s adm’r, in which the subject was much canvassed, and the authorities touching it examined, is decisive of the point. [Here, the judge stated the circumstances of that case, and the reasoning upon which it was decided; and shewed, that there was less reason in this case than in that, to hold that the debt was assigned.] lam of opinion, then, that Eib was in no form liable to the suit of Weaver or his assignee, and might safely have demurred to the bill.

But let us look at the merits. In 1805 Adam Hickman sold to Eib, a tract of land in Harrison, for which Eib gave his Pennsylvania land, and 800 dollars in three bonds. Eib reserved the privilege of cancelling the bargain, if when he examined the land, he should not like it. The land in Harrison was owned by Hickman and Maulsby in partnership, and two of the three bonds were transferred by Hickman to Maulsby, as his share of the purchase money. When Eib saw the land, he objected to taking it, and the bargain was cancelled. Hickman gave up the bond he retained, and promised to get those he had transferred to Maulsby; but he did not. Maulsby transferred one of these bonds to William Martin, who brought suit on it at law. And then Eib (in June 1806) filed a bill against Hickman, Maulsby and Martin, stating the facts, and praying that the two bonds might be cancelled. Hickman and Maulsby answered; proofs were taken; every allegation in the bill was supported; and in September 1810, the cause was heard, and a final decree rendered, by which Eib *63had a decree against Hickman, for the amount of the two bonds, 570 dollars with interest, and the bill was dismissed x'as to Maulsby and Martin. Strange as this decree seems upon the proofs in the record, it has never been appealed from, and must be taken as conclusive between the parties. A ca. sa. was sued out on the decree against Hickman, on which he was taken and committed to jail. In October 1810, Hickman being still in execution on the decree, an arrangement was entered into by Jackson, the attorney for Eib, and Pindall, who, besides being attorney at law for Maulsby, was moreover interested, as assignee, in the bonds of Eib to Hickman; by which arrangement, Pindall agreed to take Eib’s decree against Hickman, in full satisfaction of Eib’s two bonds, and thus to clear Eib of all claim on that score, which would effect the only object for which Eib went into equity. Pindall, being thus possessed of Eib’s claim on Hickman, did, in October 1810, receive of Hickman full satisfaction of the decree, and released him from custody. I consider this a final settlement of the business, and that Eib could never after be called on for the bonds, or any part of them; for Pindall, whether he acted as attorney for Maulsby, or as owner, or in both characters, had certainly power to make the settlement, so far as to clear Eib; and if he exceeded his power as regarded Maulsby, he was liable to him alone. But it is in proof, that Pindall and Maulsby, have settled the account between them. Bet it be remembered, that, during this whole time, the suit of Martin v. Maulsby, Eib and others was slumbering on the county court chancery docket; Eib no party to it, and never intended by Pindall, the plaintiff’s counsel, to be made a party; for he knew Eib was clear of the claim, and that this would come out so soon as he was brought into court. Prom the time Eib executed the bonds to Hickman, to the time he first had notice of this claim, was twenty-one years; long enough, of itself, to raise the presumption of payment of his bond.

I am then, upon every view of this case, of opinion that the decree should be reversed and the bill dismissed.

BROOKE, J.

Waiving all objections as to the irregularity of the proceedings against Eib, and taking his answer, * voluntarily filed to Martin’s bill, as an admission that he had been regularly brought before the court, — J cannot comprehend, how Maulsby’s obligation to pay Weaver 120 dollars, out of the bond of Eib to Hickman then held by Maulsby, when the money should be got from Eib, can be regarded as an assignment of Eib’s bond, or of so much of the debt due thereon, to Weaver. The terms of that obligation of Maulsby import no such transfer, even by implication. The instrument gave no right to Weaver, or his assignees, to demand payment from Eib ; nor did it authorize Eib to pay the money to them: Maulsby himself was to pay the money to Weaver or his assigns, so soon as he should get it from Eib. The grounds on which equitable transfers of debts are sustained, are fully explained in Clayton v. Fawcett’s adm’r. Here, there wis no transfer, in law or equity. If, indeed, the instrument executed by Maulsby to Weaver, had amounted to an equitable assignment pro tanto of Eib’s bond, there is no proof that Eib had notice of such transfer, until he was made a party to this suit in 1826, long after Eib’s decree against Hickman, for the amount of his two bonds that had been assigned by Hickman to Maulsby, had been applied to the satisfaction of Maulsby’s. claim upon those assigned bonds, by Pindall, the attorney of Maulsby, and, probably, the holder of all Maulsby’s rights. I think the evidence in the cause warrants the belief, that Maulsby’s interest in Eib’s bonds, was assigned by him to Pindall. It is certain, that Hickman paid the amount of Eib’s decree against him, to Pindall, and was thereupon released from custody under the execution sued out on that decree.

The court is of opinion, that the decree in the case of Eib v. Martin be reversed, and the bill dismissed.

As to the case of Pindall’s ex’x v. Eib, the foundation of this suit being wholly removed by the reversal of Martin’s decree against Eib, the decree in his case for Eib against Pindall’s executrix, is also to be reversed, and the bill dismissed.