
    Southworth Jenkins versus Jacob W. Brewster.
    Of the rights of assignees of choses m action.
    [After notice of the assignment to the defendant, no set-off of any after-«ccruing demand will be allowed.— Ed.]
    This action of assumpsit was brought upon a written memorandum signed by the defendant, hereafter mentioned, for the sum of 842 dollars 88 cents.
    
      A trial was had upon the general issue, before Jackson, J., at the last May term in the county of Hampshire.
    
    The evidence was, that, on the 21st of June, 1814, by certain articles of agreement, of that date, made between the plaintiff and one Sidney P. Brewster, the son of the defendant, it was agreed that the plaintiff should build and finish a dye-house, of a certain description, on land of the said Sidney, near to his woollen manufactory, and furnish it with vats, &c., and that the plaintiff should use and occupy the same, for two years from said date, free of rent; and that, at the expiration of the said two years, the said Sidney should pay the plaintiff all the cost of the building and its fixtures.
    The plaintiff built and furnished the dye-house; and afterwards, on or before the 30th of January, 1816, the defendant became the owner of the said factory and dye-house; and on the day last men tioned, he and the plaintiff undertook to adjust the accounts of the plaintiff, and the amount due to him according to the said agreement ; and the defendant on that day, by a memorandum in writing under his hand, reciting that the account was so settled, and that he found due to the plaintiff the sum of 842 dollars 88 cents, as would appear by the plaintiff’s books, promised the plaintiff to pay or account with him for that sum. on the 21st of June then next, according to the said articles of agreement between * the plaintiff and the said Sidney P.; and the plaintiff [ * 292 ] signed a receipt on the back of said agreement for the said sum, as in full for his expenses and labor in building and finishing the said works.
    This action was brought on the said memorandum, for the nonpayment of the said sum of 842 dollars 88 cents.
    It appeared on the trial that the plaintiff had, on the 2d of February, 1816, assigned the last-mentioned contract or memorandum, by his deed written on the back thereof, to two creditors, to secure the debts which he owed them, being 94 dollars 61 cents, and 350 dollars 90 cents; and he authorized' them to demand and receive the moneys due thereon, accounting to him for the balance of what they should receive, after satisfying their said debts with interest. The defendant had notice of the said assignment on the 3d of the same February; and he then said that, on a final adjustment, there would be nothing due to the plaintiff. The action was brought and prosecuted by the said assignees, for their own benefit, to the extent of their said demands.
    The defendant did not offer to prove that he had made any payment to the plaintiff, or any agreement with him, between the time of his making said memorandum and his receiving notice of its assignment; but he had duly filed an account in set-off, and offered evidence' in support of it, the charges therein being many of a prior and many of a posterior date to that of the said memorandum. He also offered to prove that, on the said 30th of January, it was agreed, between him and the plaintiff, that this account should be allowed against the demand of the plaintiff on the said written promise or memorandum ; and that the reason the said account was not adjusted at that time was, that there were certain bills then outstanding, the amount of which was not known.
    The said assignees objected to this evidence, and contended that they were entitled to recover upon the said memorandum, to the extent of their said demands; *and to prove that the said accounts had been adjusted and settled by the plaintiff and defendant, they read in evidence articles of agreement made between the plaintiff and defendant on the 25th of April, 1816, by which, after specifying certain acts to be done by each party respectively, it was declared and agreed that all book accounts between them were settled and closed, and that there was a balance due to the plaintiff of 1565 dollars 27 cents; and this, with a further sum of 500 dollars, which was also to become due in a certain event, was to be paid by the defendant in four equal annual instalments; and he was to give his note therefor to the plaintiff, who was to cancel the memorandum on which this action was brought.
    The defendant answered that the plaintiff had not performed the several things which, by the said last articles, he had agreed to; and he contended that, for that reason, he was entitled to prove his said account by set-off. He also offered to prove that, on the said 30th of January, 1816, it was agreed between him and the plaintiff that payment, on account of the sum demanded in this action, should be made in certain cloths, which were afterwards delivered, and were charged in the account so by him filed.
    The judge rejected all this evidence in support of the claims made by the defendant by way of set-off, reserving, for the consideration of the whole Court, the question, whether the same ought to have been admitted.
    A verdict was taken for the plaintiff, for the sum of 480 dollars 11 cents, the amount due to the said assignees, subject to the opinion of the Court on the afore-mentioned question ; the counsel for the plaintiff admitting that the said articles of agreement of the 25th of April, 1816, were a bar to this action, so far as it related to the interest of the plaintiff, and claiming to recover only to the extent of that sum. ■
    
      Mills, for the defendant,
    contended that the meinorandum declared on did not amount to a promise to *pay the sum mentioned.
    The effect of it was no more than an acknowledgment that the defendant had examined the works of the plaintiff, his bills of expenses, &c., and had found the amount to be so much, and that sum he was to account with him for, or to allow in account with him. This was the whole amount of the plaintiff’s charge, without taking into view any payments the de fendant had made on account of it, or the outstanding drafts made by the plaintiff on him, the amount of which could not then be ascertained. The defendant is fairly entitled to an allowance of these, notwithstanding the assignment of the plaintiff’s claim. The claim of the assignees is an equitable one only ; and they ought to do as well as demand equity. Besides, when they exhibited the assignment to the defendant, and until then, they had no claim ; even in equity, they were informed that, on a final adjustment of all demands between him and the plaintiff, there would be nothing due to the latter.
    
      Bates for the plaintiff.
   Per Curiam.

We have no doubts that, but for the peculiar cil cumstances of this case, an account might have been properly filed by the defendant under the statute; but, after the assignment of the contract, and notice thereof to the defendant, he could not, by any act of his, deprive the assignees of their rights under the assignment. It is true that the articles entered into between the parties on the 25th of April rendered the promise, on which this action is brought, of no validity as between those parties; but that transaction could not affect the assignees. The defendant may have his remedy on the plaintiff’s covenant; but he cannot set off his claims in this action,

Judgment on the verdict. 
      
      
         [The Court seem to entirely overlook the offer of the defendant to prove that, before the notice of the assignment, he had demands against the plaintiff which might then legally be made, arid were agreed to be made the subject of set-off against the plaintiff’s demand in the present suit, and asserted his right to this set-off at the time when he received such notice. For this reason the decision seems to be erroneous. — Ed i
     