
    
      Abram Mixon, for his assignee, vs. John Jones, Adm'r.
    
    Where a chose in action is assigned under the prison bounds Act, the debtor cannot, after notice, make payments to the assignor; nor will it make any difference in this respect, that the action on the chose on which the payments are claimed, is brought in the name of the assignor.
    
      Before Wardlaw, J. at Orangeburg, Fall Term, 1844.
    The report of his Honor is as follows : — “ The plaintiff, Mixon, having been arrested under a ca. sa. at the suit of Jesse Stephenson, to obtain his enlargement under the prison bounds Act, rendered a schedule and made an assignment to Stephenson. In his schedule was included a demand against Thomas Jones, the defendant’s intestate, for work done by Mixon on a mill dam, under a contract with the intestate. Notice of the assignment was given to the intestate, and he was cautioned against making payments to Mixon — but, notwithstanding, he afterwards paid in full to Mixon the balance which, after adjustment of mutual demands, was due to him. This action was then, after the intestate’s death, brought against his administrator upon the original demand of Mixon — in the name of Mix-on, for the benefit of his assignee, and not, as it might have, been done) in the name of the assignee¡
    
      “I held that the payment made by the intestate to Mixon, after notice of the assignment, should not be permitted to prejudice the assignee, and, under my instructions, the jury rendered a verdict for the balance against the defendant.”
    The defendant appealed, and now moved for a new trial, on the ground that, as the action was not in the name of the assignee, the payment was a full discharge of the cause of the action.
    
      Glover, for the motion.
    
      Bailey, Attorney General, contra.
   Curia, per

Wardlaw, J.

After an assignment under our prison bounds Act of 1788, the assignee has not an absolute estate in the property assigned, but, subject to prior incumbrances, has all the powers necessary for obtaining satisfaction of his debt, with accountability to the assignor for any surplus. (1 McM. 376.) He is authorized, but not required, to sue in his own name. So suing, he will be considered as entitled to the legal estate. But still, at his election, he may use the name of the assignor, as he might have done under a voluntary assignment before the Act. In that case, he will be considered as entitled to the beneficial interest under the assignor, his trustee, (1 T. R. 621,) or he will be considered as attorney with an interest. In either view, his rights will be protected by the court.

Ware vs. Key, 2 McC. 373, shews that the bearer of a note, negotiable by delivery, may thus sue, either in his own name or that of the payee. So may the assignee of a judgment, bond, or note not negotiable, under our Act of 1798.

In all these cases, where an assignee uses the name of his assignor, the case of Morris vs. Peay, 1 Hill, 35, and the cases upon which it was decided, shew that a release by the assignor, or payment to him, after notice to the debtor of the.assignment, will not be allowed to defeat the action.

No harm is done to the debtor. The judgment in a suit brought in the name of the assignor, would be a protection against any subsequent suit in the name of the assignee, upon-its being properly pleaded and proved that the first suit was for the use of the assignee, or by his authority. The motion is dismissed.

The whole court concurred.  