
    Elijah Dix & Al. versus Samuel Cobb and Jonas Whitney, his Trustee.
    A book debt for goods sold is assignable in equity.
    [f an attaching creditor, having knowledge of an assignment of the debt which lie attaches, believes it fraudulent, he may sue the assignee as trustee, and compel a discovery.
    
      The question, in this case, arose on the trustee’s answer to the interrogatory put by the plaintiff. In that answer, Whitney acknowledges that, at the time of the service of the writ upon him, Cobh had a book account against him for sundry articles of merchandise, to the amount of about fifteen dollars, for which he, Whitney, had not paid. After the service of the writ, a paper, or assignment, under the hand and seal of Cobb, a copy of which is annexed to and made part of the answer, was presented to him by the attorney of the assignees named in the said instrument, by whom he was also requested to pay to the said assignees the sum he owed to Cobb, * was notified tha.t the assignment was [ * 509 ] given for the consideration therein expressed; that Cobb had no claim on him for the said debt, and was forbidden to pay it to him.
    The said assignment was a deed poll, in which Cobb, acknowledging that he owed unto S. 8f H. Higginson sundry sums of money on several notes of hand, which he recites, and unto A. Elliot sundry other sums on other notes, which he also recites, and declaring himself willing to secure the said Higginson and Elliot, as far as he was able, the said several sums,- assigns and makes over unto them all sums of money due him from a number of persons, whom he names, and among whom is Jonas Whitney, the trustee in this case, for the express purpose of securing the payment of the notes above described; and the moneys arising from the debts so assigned, after payment of two particular sums, are to be endorsed on the notes of Cobb to the said assignees, and the surplus paid over to Cobb. And there is likewise power given the assignees to demand and sue for the several sums so assigned.
    The question was argued at this term by Strong, of Westminster, for the plaintiffs, and A. Bigelow for the trustee.
    
      Strong
    
    contended that the assignee was not protected in his assignment until he had given notice to the debtor, and the attachment, in this case, being previous to the notice, would hold the trustee. 
    
    Though it cannot now be contended that the assignment of a chose in action will not be supported, yet a demand of the kind dis-. closed here, seems in its nature less capable of transfer than a bond or note not negotiable, which may be called portable demands. An account of goods sold is a mere memorandum, and is of itself no more evidence of a debt, than a like entry or memorandum of a trespass would be evidence of such trespass.
    
      But, if such a demand is assignable, there should be evidence, not merely of the assignment, but of a valuable and adequate consideration, and notice of the assignment given to the debtor. In the case before the Court, suppose the assignment and [*510] consideration proved, yet there was no notice *to the debtor until after the law had interposed, and had given to the present plaintiffs a lien on the debt. If any transaction, taking place after the service of the process on the supposed trustee, can alter the relations of the parties, very great confusion will follow. If, at the time of the service, it was in Cobb's power to discharge Whitney, which will not be denied, then it is inevitable that he was at that time the debtor and trustee of Cobb.
    
    Further, here is no evidence, nor, since the whole must come from the trustee, can there be evidence, that any consideration was ever given for this assignment. It is competent for the plaintiffs to deny that any thing was due from Cobb to these assignees.
    
      Bigelow.
    
    The assignment, in this case, of itself, proves the consideration paid. Notice answers every purpose if given before the money is actually paid by the trustee, or a judgment in force against him. In this case, it can make no difference in the rights of these plaintiffs at what time the trustee had notice, or whether he had any notice at all. If we cannot go out of the trustee’s answer to prove a valuable and sufficient consideration paid, yet fraud is not to be presumed.
    
      
      
        Comstock vs. Farnham and Trustee, 2 Mass. Rep 96.
    
   The action stood continued nisi for advisement, and the opinion of the Court was delivered at the succeeding March term in Suffolk by

Parsons, C. J.

Has Whitney, by his answer to the plaintiff’s interrogatory, discharged himself? is the question submitted to the Court.

This answer admits that he formerly owed Cobb about fifteen dollars, on account for merchandise purchased ; that when he was sued, he had no knowledge that. Cobb had assigned this debt, but that he has since been informed by the attorney of Higginson and others, that, before the suit, this debt had been assigned to them, and was forbidden to pay it to Cobb, but was requested to pay it t.o the assignees. A copy of the assignment, under the seal of Cobb, the trustee annexes, and makes it a part of his answer.

The plaintiff insists that this debt is not protected from his attachment by the assignment, for several reasons. One is, the nature of the debt, resting, for its evidence, on an account [*511] * book, and on a note or bond, is such that it is incapable of assignment. Another reason is, that he made the attachment before the trustee had notice, and, also, that the trustee, not being privy to the assignment, it may without his knowledge be fraudulent as to the creditors of the assignor.

After full consideration, we are satisfied that Whitney has discharged himself by his answer. The debt is a chose in action, and, like other choses in action, except negotiable securities, is not assignable at law; but all choses in action may be assigned in equity, and the assignee has an equitable right, which he may enforce at law in the name of the assignor, whose release or bankruptcy shall not defeat it.

In the case of Winch vs. Keeley, (1 Term Rep. 619,) the debtor had assigned, as in this case, a debt due for goods sold, and he after-wards becoming bankrupt, it was determined that the assignment should protect the debt against the assignees under the commission of bankruptcy. If the debtor has paid the debt to the assignor without notice of the assignment, he shall be discharged; for he shall not suffer by the neglect of the assignee.

The doctrine which establishes the assignability in equity of choses in action, arises from the public utility of increasing the quantity of transferable property, in aid of commerce and of private credit.

The assignment in this case may be fraudulent, but on its face it appears to be regular, and for a valuable consideration; and we cannot presume fraud.

When an attaching creditor has reason to believe the assignmen fraudulent, of which he has knowledge before the suit, he may sue the assignee as a trustee, and compel him to a discovery on oath; or, if he has not notice seasonably to sue the assignee as a trustee, he may, after he has recovered judgment against the principal, sue an action of debt on that judgment, and summon the assignee as a trustee in that action, and compel him to a discovery on oath upon the penalty of paying the debt; and if, on this discovery, the assignment should be fraudulent, the assignee would be adjudged a trustee so far as he had derived any benefit from it. And *it is much better to leave the attaching creditor [*512] to this remedy, than to presume an assignment fraudulent, or to defeat the assignability of choses in action.

Although the trustee in this case had no notice of the assignment until after he was sued as a trustee, yet, immediately on the assignment, the equitable interest in the debt, as between the parties to it; immediately passed to the assignee. And if the assignor had afterwards received the debt, he would be obliged to pay it over to the assignee. But an attaching creditor cannot stand on a better footing than his debtor, (if the assignment be not fraudulent as to creditors,) and if he attaches any property of his debtor, it must be attached subject to all lawfully existing liens created by his debtor. And, consequently, if his debtor have no equitable interest in a chose in action, the creditor cannot acquire any by his attachment.

Therefore, the want of notice in the trustee will not defeat the assignee’s interest in this debt in favor of an attaching creditor. This point was decided in Suffolk, about eight years ago, in the case of Wakefield vs. Martin and Trustees.

Judgment that Whitney be discharged as trustee. 
      
      
        Ante, vol. iii 558.
     