
    EZRA SANBORN vs. GEORGE LITTLE.
    Where a note, not payable to order, was for a valuable consideration assigned to third persons, ami an action brought ior their benefit in the name of the payee, it was held, that the maker might set-off a debt due to him at the time of the assignment from the payee.
    Assumpsit upon a promissory note, dated October 2, 1823, for $42 56, payable to Sanborn, but not to his order, in ninety days with interest after, and ¡nade by Little,
    
    The defendant filed as a set-off, a note made by the plaintiff, dated March 13, 1824, for %01 53, payable to the defendant, or order, on demand with interest.
    The cause was referred to an auditor, who reported, that in October, 1823, the said note, given by the defendant tc the plaintiff, was, for a valuable consideration, sold and delivered by the latter to three persons , for whose benefit this suit is brought; and that on the 1st November, 1823, notice was given to the defendant of the said sale of the note, to which he replied, that Sanborn was indebted to him. The auditor further reported, that at the time, when notice was given to the defendant as aforesaid, there was justly due to him from the plaintiff, on account, the sum off89, 53,which was included in said note filed inset-off.
    
      Gooclall, for the plaintiff.
    
      J. Smith, for the defendant.
   Richardson, C. J.

It is now well settled, that Use equitable interest of an assignee of a chose in action is to be protected by courts of law, against all interference of the original parties, after notice of the assignment. 1 D. & E. 619.—4 ditto 341.—14 Mass. Rep. 291, Jenkins vs. Brewster.-1 B. & P. 447, Legh vs. Legh.3 John. 425, Littlefield vs. Story.—Willes’ Rep. 261, Hutchinson vs. Sturges.1 John. 531, note, Wardell vs. Eden.—5 ditto 193, Eels vs. Finch.—12 ditto 276, Weston vs. Barker.

But the interest of the assignee of a chose in action bfeiiie merely equitable, he is to stand in the situation of the assign- or, at the time of the assignment, and subject to every de fence, which might then have been set up against the assign- or. 12 Mass. Rep. 195, Green vs. Hatch.

An individual may, however, where a chose inaction against him has been assigned, so demean himself, as to preclude him from settingup, as a defence against the assignee, what might have been a good defence, as against the assignor. 16 John. 226, Gould vs. Chase.—19 ditto 49, Henry vs. Brown.16 Mass. Rep. 397, King vs. Fowler.

In the case now before us it appears, that at the time of the assignment, the assignor ivas indebted to the defendant, of which the defendant gave notice, when he received notice of the assignment. Nothing can be clearer, than that the debt thus due is a proper set-off in this case. And the circumstance, that the said debt has been included in a note, ■nade after the assignment, does net change the law or the «ipity of the case. There must be

Judgment for the defendant.  