#### *J. B. Tibbetts, for his assignee,*v. *J. R. Weaver.*

Where, there has been a voluntary assignment of all his dioses by an insolvent, under a deed to a trustee for creditors, a debtor bn open account, after notice of the assignment, cannot defeat the rights of the assignee by payment to the assignor. In an action on such account, in the name of the assignor against the debtor, the payment will be considered wrongful, and judgment be rendered for the benefit of the assignee.

*Before*Withers, j. *at Edgefield, Spring Term,*1850.

These were two actions tried together; one in the *sum. pro.*and the other in the higher jurisdiction^ They were brought on two accounts, made by defendant with plaintiff as a shopkeeper, and the plaintiff’s name was used by his assignee, the latter being the party who caused these actions to be brought. ...

The defence assumed three forms: — 1st. Payment; 2d. Discount; 3d. Special plea that Tibbetts had agreed to extinguish these accounts, upon defendant’s paying their amount on a'judgment.that had been obtained against Tibbetts and the defendant as his surety, by one Harriet Brown, and such payment the defendant had made.

Harriet Brown recovered her' judgment against Tibbetts and Weaver, on the 15th March, 1847. On the 14th February, 1848, Tibbetts made an assignment, in pursuance the Act of Assembly of 1828, to Christie, of all his effects, for the benefit of creditors generally, without preference. These actions were commenced, respectively, on the 13th and 15th September, 1848.

The agreement relied upon in the special plea, was made some short time after the assignment by Tibbetts. Tib-betts was then acting as a sort of agent of his assignee, in winding up his business, by verbal appointment, being authorized (as. he said) to “sell the stock, collect notes, and generally to make such arrangements as I might think proper in settling my accounts.” It was not until 5th March, 1849, that defendant paid Harriet Brown’s judgment, being nearly six months after these actions were instituted, and more than a year after the assignment was made.by Tibbetts. No evidence was adduced to shew whether Weaver had knowledge of the 'assignment, when he made the agreement with Tibbetts.

The question was whether, tn point of law, Weaver was bound to notice the assignee, or apy rights or equities he had; whether, in regard to these open accounts, sued now, of necessity, in the name of Tibbetts, he could not set up all defences which would be open to him if there had been no assignment; and it was insisted he could, whether he was aware of the assignment or not.

*145The Circuit Judge *held,*that since such assignments were authorized by the Act of 1828, and since the interests of( assignees had, in several forms, been recognized by Courts of Law, the case ought to turn upon the inquiry whether, when the arrangement was made with Tibbetts to settle these accounts by payment of so much on Harriet Brown’s judgment, Weaver had knowledge of the assignment. As to the plea of discount, he supposed that was not sustainable, since no payment had been made till after these actions were commenced. The jury found for the plaintiff in both cases, allowing a discount of forty dollars and sixty-three cents undisputed.

The defendant moved for a new trial, upon the grounds:

1. That the plaintiff’s demands against the defendant were satisfied, in pursuance of the agreement between them, by the payment of so much money by the defendant upon the judgment recovered by Harriet E. Brown, even if it appeared that such agreement had been made after notice had by the defendant of the plaintiff’s assignment-to Simeon Christie, and the presiding Judge erred in ruling otherwise.

2. That the burden of proof, in respect to the defendant’s having had notice of the assignment to Christie, rested upon the plaintiff, and that no sufficient evidence thereof was adduced, and-the presiding Judge should have so instructed the jury.

Carroll, for the motion.

*Gi'iffin,*contra.

*Curia, per*Wardlaw, J.

The verdict, with the con.currence of the Circuit Judge therein, has established that the defendant had notice of the assignment, before the agreement concerning the payment on Harriet Brown’s judgment was made, and that Tibbetts had not the authority of his assignee to make that agreement.- The question is then, in effect, whether, when there has been a voluntary assignment of all his choses by an insolvent under a deed to a trustee for creditors, a debtor on open account, after notice of the assignment, can defeat the rights of the assignee by payment to the insolvent.

Whilst.it is admitted that a Court of Law will protect the assignee of a bond or unnegotiable note, when he sues in the name of his assignor, not only against the release or other unjust interference of the assignor, but against any payment made by the debtor to the assignor after notice of the assignment, it is argued that the same respect will not be given to the assignment of an unliquidated demand. It is said the bond or unnegotiable note is, of itself, evidence of debt and security for money — partakes of the nature of a substantial chattel — may be delivered — and for it, trover will lie; but an unliquidated demand is merely ideal, and is represented by nothing visible, which may pass as the test *146of ownership. This distinction is recognized by the cases of *Brown & Co.*v. *Rees,*and *Brown*v. *Thompson*— but the f°rmer ^ese cases was decided upon the assumption that neither the notice of the assignment nor the insolvency of the assignor was proved, and the latter relates to the subject an ecluitable discount. The principle upon which a Court of Law protects the assignee, when the suit is not in his own name, applies to all choses in action equally. .The case of *Winch*v. *Keely,*where it was recognized, was *in-debitatus assumpsit,*for work and labour, &c. Our late case of *Mixon*v. *Jones,*was a demand for millwright’s work done under special contract; and although there the assignment had been made under the prison bounds Act, yet, the action being in the name of the assignor, the assignee had no higher rights than he would have had under a voluntary assignment.

We suppose not that the Act of 1828 has enlarged the powers or rights of the assignee of an insolvent; it has rather regulated and abridged them. Upon the subject in hand, it has pioduced no effect which would not have ensued without it; but it is evidence of the efficacy which, before its enactment, was given to the assignment of all a debtor’s choses; and we decide merely, that a debtor shall not be permitted to defeat such an assignment, after notice of it, by payment to the assignor, or agreement with him. Every such act must be fraudulent, and ought not to be sustained.

We decide nothing as to cases where the assignment may be doubtful or informal — as by the bare delivery of some paper which contains a copy of an account or statement of a demand, or by an oral transfer of power to collect. Here the assignment was by deed, formal and plainly irrevocable.

The defendant is not required to become debtor without his consent,.nor to contract with a person that he has not chosen to deal with ; but that which his creditor could demand of him, he must, pay to the order of that creditor, and he is required only to heed the notice that any other payment is void. In his payment, every discount or equity which subsisted at the time of the assignment is allowed; but he is not permitted, after notice of the assignment, to affect the assignee by discount or equity against the assignor, subsequently acquired.

The chief objection to the practice of a Court of Law in protecting assignees of choses, is *some*want of mutuality a discount °f die defendant against the assignee, existing at the commencement of the suit, is rejected. But this case, no such discount was offered, and the matter need not now be considered.

The motion is dismissed.

Evans, Frost and Withers, JJ. concurred.

*Motion refused.*