
    C. H. Nettles, for his Assignees, vs. Wm. Huggins.
    After assignment under the Act, for the benefit of creditors, a debtor of the assignor, who was also his surety, paid the debt for which he was surety:— Held, that he could 'not set up the payment as a discount to the action by the assignor to recover, for his assignees, the debt due by the defendant.
    BEFORE WIÍITNEE, J„ AT DARLINGTON, SPRING TERM, 1855.
    Tbe report of his Honor, the presiding Judge, is as follows:
    “ The plaintiff, a merchant, made an assignment under the A. A. of this State, for the benefit of creditors, 13th January, 1853.
    “ The action was founded on an account for goods sold and delivered previously, and included in the assignment.
    “The defendant filed a discount to set off various demands, and amongst them, one arising on a note given by C. H. Nettles for money borrowed, with defendant Huggins and - Best, as sureties, 4th February, 1852, due 1st January, 1853, and paid off by sureties, in equal proportions, 2nd April, 1853.
    “ The discount was allowed by the jury, except the last item, and the plaintiff had a verdict for a small amount.
    “ The facts were beyond dispute, and if defendant was entitled to set off his demand, the verdict should have been for him and for the balance according to his legal rights.
    “I felt constrained to instruct the jury, that the question must be determined by the state of things at the time of the assignment, when the rights of creditors attached, and defendant having then no subsisting legal demand in this particular, that this item should not be allowed. It is an extreme case, leading to a result different from that which must strike the mind as just. I shall be glad to find the rule less stringent than I have supposed.”
    The defendant appealed and now moved this Court for a new trial:
    1. Because his Honor, the presiding Judge, erred in instructing the jury, that they were not at liberty under our discount law, to allow as a discount, the amount paid by defendant as surety on plaintiff’s note, after the date of plaintiff’s assignment, although the note was due before the assignment, and paid by defendant before plaintiff’s action was brought.
    2. Because the plaintiff suing for his’assignees, on an open account, was entitled to no better position in law than if he had sued for his own benefit.
    3. Because the rejection of the defendant’s discount by the jury, under the circumstances of this case, was contrary to law and evidence.
    
      Law, for appellant.
    
      Largan, contra.
   Cukia, PER O’Neall, J.

This case it seems to me is settled by Tibbetts vs. Weaver, 5 Strob. 144.

In that case it was held that after a voluntary assignment by an insolvent of all his choses for payment of his debts, payment by a debtor of his open account to the plaintiff who sued for his assignees, could not defeat them. If a payment could not be allowed in such a case, much less can a discount, arising after the assignment, have that effect.

In this case, the money was paid after the assignment by the defendant, the surety, in discharge of a debt of the assignor which could only take place and be paid according to the deed. To allow the surety to pay and set up the amount so paid as a discount would defeat the rights of all the creditors under the deed.

But it is certainly well settled by our decisions that nothing can be allowed against the assignee, which did not have a perfect legal right of enforcement; before the assignment.

In Williams vs. Hart, 2 Hill, 483, it was held, in an action by the assignee of a sealed note, that a note given to the defendant by the obligee after the assignment, although a renewal of a note given before, could not be set up as a discount.

So in McAlpine vs. Wingard and Miller, and The Same vs. Sondly, 2 Rich. 547, it was held that an independent demand, not due at the time at which the note against which it was attempted to be set up as a discount was transferred, notwithstanding such transfer was with notice, could not be allowed as a discount.

The motion is dismissed.

Wardlaw, WxthbRS, Whither, Glover and Muhro, JJ., concurred.

Motion dismissed,  