
    Tuttle against Bebee.
    Inan action of as. ¡>umj,sit, brought by A. against />. the defendant may set off a ooiid given by Jl. to C. and assigned by C. to B. before the commencement of the suit,"
    THIS was an action of assumpsit. The cause was tried at the New-York sittings, in December, 1809, before Mr. Justice Yates,
    The plaintiff’s declaration, which was of August term, 1808, contained three counts:
    1. On a written agreement dated January 1st, 1798, by which, in consideration that the plaintiff had delivered to him, a certain quantity of goods, of the value of about 2,600 dollars, as collateral security for a promissory note of the plaintiff, held by the defendant, for 1,420 dollars payable the 1st of May, 1798.' The defendant promised, in case the note was punctually paid, to deliver up the goods to the plaintiff, but if the note was not paid, the defendant should sell the goods at auction, and pay over the surplus, if any should remain, after discharging the note, and deducting commissions and charges, to the plaintiff. The defendant pleaded non assumpsit, with notice of a set-off. The agreement or receipt for the goods was produced in evidence.
    A demand of the goods in October, 1804, was proved, when the defendant admitted that he had sold the goods, and that there was a balance in favour of the plaintiff, which, he said, he had paid to certain creditors of the plaintiff. The defendant, though requested, never rem dered to the plaintiff any account of the sale of the goods.
    The defendant offered, pursuant to the notice subjoined to his plea, to set off two bonds executed by the plaintiff, dated the 1st of June, 1801, one for 1,824 dollars and 50 cents, and the other for 1,007 dollars and 29 cents, given to certain persons, in Philadelphia, and, by endorsement thereon, assigned to the defendant, on the 1st of January, 1808, which was prior to the commencement of this suit.
    The plaintiff’s counsel objected to the admission of this set-off, and it was rejected by the judge.
    The defendant did not offer to produce any account of sales of the goods; and the judge charged the jury to take the invoice value, mentioned in the defendant’s receipt, and after deducting the amount of the note, with 5 per cent, commissions and charges, and allowing a reasonable time for the sale of the goods, to find a verdict for the plaintiff, with intere'st. The jury found a verdict for the plaintiff for 1,850 dollars.
    
      A motion was made to set aside the verdict, and for a new trial. The material question was, whether the defendant ought not to have been allowed to set off the bonds, which had been assigned to him.
    Woodworth, for the defendant,
    cited 3 Johns. Rep. 425. 4 Term Rep. 350. the opinion of Buller, J. 1 Hen. Bl. 659.; and relied on the case of Bottomly v. Brook, stated by Lawrence, J. arguendo, in the case of Winch v. Keely, (l Term Rep. 621.) as in point. Montague on Set-Off, 11. 27.
    Johnson, contra,
    admitted that courts of law had, of late years, gone very far in taking notice of assignees, and permitting assignments of choses in action; but he contended, that to admit the s'et-off in this case would be going further than this court had ever gone, and fmv ther than the decisions of the English co'ufts. It would entirely overturn the maxim of the common law, in regard to the assignment of choses in action, and abolish all distinction between a court of equity and a court of law, in regard to equities or trusts of this kind.
   Thompson, J.

A new trial must, therefore, be awarded, with costs, to abide the event of the suit.

Spencer, J.

observed, that though he concurred in the opinion of the court, he did it with hesitation, as he thought the decision went much further than courts of law had gone before, on this subject.

New trial granted-  