#### *M. A. Thorn, for his assignee,*v. *R. C. Myers.*

The jury, by their verdict, found that the note offered in discount, had not been really transferred to the defendant, so as to make him the equitable owner of it, before he had notice of the assignment of his note to the party for whom die suit was brought in the name of the payee. Assuming this proposition as established by the verdict, it was held that the discount could not be allowed.

The moment a note is assigned all right of set off ceases, except as to those demands which existed at the time of the assignment.

The Act of 1798 does not make it imperative on the assignee to sue in his own name.

*Before*Wardlaw, J., *at*Columbia, *March,*1850.

Assumpsit cn an unnegotiable promissary note, brought in the name of the payee, although the note was assigned to R. P. Mayrant.

*Copy note.*— “ Columbia, Nov. 1846. At the races in Columbia, 1847,1 promise to pay M. A. Thom $100.

*R. C.*Myers.”

*Endorsed*— “ I assign the within note to R. P. Mayrant, 10 Feb. 1847.

M. A. Thom.”

*Discount.*— Two notes of M. A. Thorn, viz :

1. Dated June 15th, 1845, for $50, payable at 3 months, to Thos. Ware, or order.

Signed, M. A. Thorn.

Endorsed, “Thomas Ware.” (The endorsement, it was admitted, was signed since the commencement of this suit.)

*2112. Dated 15th June, 1845, for $60, payable at 3 months to L. Dickinson or order. Signed.

M. A. Thorn.

Endorsed, *“*Lewis Dickinson.’’ (The endorsement, it was admitted, was signed subsequently to the date of the assignment to Mayrant, and previous to the commencement of this action.)

*John C. O'Hanlon*testified as follows: The races at Columbia in 1847, commenced about the 14th January.

The two notes offered in discount were left with me for collection by Dickinson, before the races. I owed Myers one note for more than $-110. Myers owed Thorn this note now sued on. Thorn called on me for money — I proposed to give him these two notes (now offered in discount) in payment of what Myers owed him; he would not take them — said he would have to see Myers. Soon as I saw Myers afterwards, I delivered the two notes to him — he said he would make them answer. I can’t say positively when I delivered them —think more than three years ago. I transferred them to him in payment of what I owed him; he still has my note. I suppose it is credited with these notes: he and I have had no settlement.

The Circuit Judge instructed the jury, that as the action was brought, the discount should be allowed, if the two notes were really transferred to Myers so as to make him equitable owner of them, before he had any notice of the assignment to Mayrant — notwithstanding that there was no endorsement of either of the two notes before that notice was had. The facts were submitted to the jury, and they found for the plaintiff the principal and interest of the note sued on.

The defendant moved the Court of Appeals for a new trial, on the following grounds :

1st. Because John C. O’Hanlon testified positively that he had the absolute control of the two notes offered in discount, and that he transferred them to the defendant in payment of a debt due him, and because there was no proof whatever that at that time the note of the defendant had been assigned to R. P. Mayrant, or that the defendant had notice of such assignment.

2nd. That there was no evidence whatever that the defendant ever had notice of the assignment to R. P. Mayrant until this action was commenced.

3rd. That the verdict of the jury rejecting the discount of the defendant was entirely unsupported by, and' contrary to the undisputed testimony, and to the law applicable to the case.

Arthur, for the motion.

Goodwyn, contra.

*212Curia, *per*Evans, J.

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The appellant’s counsel concedes he cannot set off Ware’s note as a discount; and the consideration of this Court has therefore been confined to Dickinson’s note. Before the Act of 1798, the assignee of a note not negotiable had only an equitable interest; the legal interest was in the payee, and in his name the action must kave been brought. But since that statute he is, I presume, the legal owner. The legal interest is in him, for he may bring an action in his own name. It follows from this, that the moment the note is assigned, all right of set off ceases, except as to those demands which existed at the time of the assignment. Any debt which the payee might owe the maker after the assignment could not be set off, because it would be wanting in that mutuality whichis essential to the rightofset off’. If therefore Mayrant had asserted his legal interest in the note, by bringing an action in his own name, I apprehend there would- be no doubt the defendant could ‘not set off Thorn’s note to Dickinson, because it was admitteá on the trial, that it was endorsed by Dickinson after Thorn’s assignment of defendant’s note to Mayrant. But it is supposed, that as Mayrant has brought the action in Thorn’s name, he has thereby waived his right as assignee under the Act of 1798, and the case is to be decided as if he was only the equitable owner, and in that view, the charge of the Circuit Court was right, that the discount was admissible, if the notes were transferred, so as to make Myers the equitable owner, before he had notice of the assignment to Mayrant. If, after notice of the assignment to Mayrant, he became the owner of Thorn’s note, then it is clear Myers could not set it off’. On this principle, we have decided the case of *Tibbets for Christie*v. Wever, during the present term.

The Act of 1798 does not make it imperative on the as-signee to sue in his own name. The words are “the as-signee of any bond, note or bill may, and he is empowered, to bring an action in his own name and styling himself as-signee, provided, that the defendant shall not be precluded from the advantage of any discount or defence which he or she would have been entitled to if the action had been brought in the name of the obligee of said bond or the payee of such note or bill.” It is clear Mayrant might have sued in his own name. Whether his use of Thorn’s name can be considered as a waiver of the advantage which the law gives him as assignee, is a question about which a difference of opinion may exist. But it is not thought necessary to decide it in this case. The defendant has had the full benefit of the affirmative of that position by the charge of the presiding Judge, and the jury by their verdict have found that the “ two notes were not really transferred to Myers, so as to make him the equitable owner of them, before he had notice of the *213assignment to Mayrant.” Assuming this proposition as established by the verdict, it is clear, the discount cannot be allowed.

The motion for a new trial is therefore dismissed.

Wardlaw, Frost, and Withers, JJ., concurred.

*Motion refused.*