
    
      B. F. Hunt, executor of John P. Sutcliffe, ads. Reigne, executrix of John Reigne, assignee of James L. Peigne.
    
    1. The death of a plaintiff in a judgment, after it has been assigned, cannot affect the right of the assignee.
    2. In an action, of devastavit against an executor, the death of his testator, before .judgment recovered against him, cannot be set up as a defence: if true, it ought to have been pleaded by the executor to the original action against him.
    3. A set off against the plaintiff in the original judgment, is too late after a recovery by the assignee against the executor of the defendant.
    
      Before Earle, J., Charleston, May Term-, 1842.
    This was an action of debt on a judgment. The facts were, that a suit was commenced on 3d January, 1824, by James L. Peigne, against John P. Sutcliffe, and after many years delay, a verdict was obtained on the 3d February, 1832, against the defendant, for $554 11, and a fi. fa. issued; the defendant was out of the State. This judgment was assigned to John Reigne, on 26th December, 1833 ; the plaintiff, Peigne, on the 29th November, 1824, took the benefit of the prison bounds Act, and was discharged, having no estate, as he alleged. In January, 1826, a decree was obtained in equity, by the heirs of C. H. Peigne, against J. L. Peigne, among whom was John P. Sutcliffe. James L. Peigne was the guardian of John P. Sutcliffe, and never accounted for funds received by him as such, as he himself admitted in answer to a bill filed by Sutcliffe, in 1826. It now appears that John P. Sutcliffe died on the 13th April, 1830, on board the Hudson frigate, so that the judgment was obtained after the defendant was dead. Peigne being notoriously insolvent, no action was had on the judgment against him in his lifetime. John Reigne, the assignee, died, pending a suit brought against the present defendant, and it was revived by his executrix. In an action on the judgment against the executor of Sutcliffe, a judgment was obtained; then James L. Peigne, the assignor, died; an action is now brought against the executor personally, in which he proposed to set off the debt due by judgment or decree in equity against James L. Peigne to John P. Sutcliffe, as one of the heirs of C. H. Peigne, and also the debt due by James L. Peigne to John P. Sutcliffe.
    He also offered to prove that the judgment against Sutcliffe was rendered after his death ; all which was refused by the court, and the defendant appealed:
    1. Because the assignor being dead, no suit at law can be maintained against the defendant, in the name of the assignee or his executrix.
    2. Because defendant ought to have been permitted to shew that the original judgment was rendered against a dead man.
    3. Because the decree in equity is a good set off.
    4. Because the debt due by Peigne is a good set off.
    Rice & Hunt, for the motion. Yeadon, contra.
   Curia, per

O’Neall, J.

The grounds of the defendant’s motion are, it seems to me, susceptible of easy answers.

The death of Peigne, after assignment, could not affect the rights óf the assignee or his representative. The law permits the action on the judgment to be brought in the name of the assignee. This secures a party in court. The assignor is in no shape a party to the proceeding; he has parted with his interest, and could not even sue on the judgment, without the consent and for the use of the assignee. This being the case, his death, after assignment, can be of no importance.

The allegation that Sutcliffe died before the judgment was obtained against him, cannot now be heard. When the executor was sued in the former action, was the time for this objection to be presented. The recovery against him cuts off all anterior defences ; and the evidence is not permitted to be heard. The law presumes every thing was right and legal at that time, and hence, therefore, the defence cannot now be made.

The proposed set-off is against Peigne. If it ever were competent, it was at the time when the recovery, which is the predicate of this action, was had. Then the plaintiff was asserting the right derived by her testator from Peigne, by assignment. When that recovery was had, the assignment, like all other matters in pais, transit in remjudicatam. This case is not in the right of the assignor. To recover here, the judgment last recovered was the only evidence of title which the plaintiff was to produce. That being so, defences which had been good against Peigne, cannot be set up against Reigne ; for his recovery cuts off all such evidence; upon the legal presumption, that if they had been good, they would have been asserted when the title derived from him was in issue.

Evans, Butler and Wardlaw, JJ., concurred.  