The declaration states that on the _____ day of _________, in the year of our Lord, 1780, Robert Hogg died, having made and duly published his last will and testament in writing, and thereof appointed James Hogg, William Hooper, and James Burgess executors; that on the 21st day of December, in the same year, by indenture bipartite, bearing date the same day and year, between James Hogg of the one part and Samuel Campbell by the name and description of Samuel Campbell of New Hanover, of the other part; the said Samuel Campbell, by (234) and with the consent of William Hooper and James Burgess, for and in consideration of four negro slaves, that same day sold and delivered to him by James Hogg, and in consideration of divers other matters and things thereafter to be performed by the said James Hogg, for the use and benefit of the said Samuel Campbell, did transfer and set over all his, the said Samuel Campbell's right, title, and interest; that is to say, one moiety of all debts or sums of money remaining due and owing to the copartnership of Hogg and Campbell, or the survivor *Page 202 thereof, or to the representatives of the deceased partner, for or by reason of the said copartnership, from whomsoever the same was due, upon account, bill, bond, note, agreement, or other writing, and all the claim and interest of him the said Samuel Campbell to the said debts: To have, hold, receive, and take the said debts and every of them to the said James Hogg, his heirs, executors, etc., without account to the said Samuel Campbell. And he, the said James Hogg, by the said indenture, did covenant with the said Samuel Campbell that he would take upon himself the payment of all debts due by the copartnership to divers persons, and would at all times thereafter indemnify the said Samuel Campbell, his heirs, etc., from all actions, suits, etc., that might or should be brought against him, by reason thereof; and that he, the said James Hogg, would discharge and keep harmless the said Samuel Campbell, his executors, etc., of and from all the debts which at the time of the death of Robert Hogg were due from the copartnership, and which at the making of the said indenture, were then due and owing on account of the trade and copartnership between the said Robert Hogg and Samuel Campbell.

After the execution of this indenture, Samuel Campbell attached himself to the British enemy, and left this country, and was thereby rendered incapable of carrying on suits at law. At an Assembly, held at Fayetteville, on the 18th November, 1786, an act was passed, entitled "An act to enable and executors of Robert Hogg, deceased, to maintain and defend suits, under the regulations therein mentioned"; (235) which, after reciting that it had been represented and proved to the General Assembly that the said Samuel Campbell, while he was a citizen of this State, and before he withdrew from his allegiance to it, did assign and set over, for a good and valuable consideration, all his right, title, and interest in and to all the debts due to all the said copartnership, to James Hogg, one of the executors and devisees of the said Robert; and that the said Samuel, by withdrawing himself, was disabled by himself or by others, to bring suits in his own name, and that by the death of Robert Hogg the only mode of maintaining suits for the recovery of debts due to the said copartnership, agreeably to the laws then in force, must be in the name of the said Samuel Campbell, surviving copartner of Hogg and Campbell; and that thereby the executors of the said late Robert Hogg were utterly prevented from recovering the just debts due to the copartnership so assigned, and were disabled to carry the will of the said Robert into execution, and to pay his just creditors. It is therefore enacted that the said James Hogg, William Hooper, and James Burgess be and they were thereby authorized and empowered to maintain suits as well in law as in equity in *Page 203 the names of them, the said William Hooper, James Hogg, and James Burgess, styling themselves executors of the said Robert Hogg, and in the names of the survivor or survivors of them, to sue for and recover all moneys due to the copartnership, in their names as executors, and to have recoveries as fully and as amply in the same manner as Samuel Campbell himself could, if he had remained a true and faithful citizen of this State, and had never assigned his interest in the copartnership to the said James Hogg.

After the passing of the act of Assembly, William Hooper and James Burgess died; and on the 20th day of April, 1796, James Hogg, as the surviving executor of Robert Hogg, deceased, brought this suit, to which the defendant pleaded "General issue, set-off, and notice of set-off, payment at and after," etc.

In the year 1789 the defendant recovered against Campbell the sum of £ 500 for negroes of the defendant, said to have been carried away by Campbell when he attached himself to the enemy. At (236) the trial of the cause, the plaintiff produced the bond declared on, as also the deed of assignment, and the act of Assembly, mentioned in the declaration, and on this rested his case. The defendant offered the judgment recovered by him against Campbell as a set-off, which was objected to by the counsel for the plaintiff; the objection was sustained by the Court (HAYWOOD and STONE, Judges, at April Term, 1797), and the plaintiff had a verdict for the value of the sterling money, mentioned in the bond, but the jury having given no interest, the plaintiff moved for and obtained a new trial, and the cause being tried at April Term, 1799, the jury found the bond declared on to be the act and deed of the defendant, that the sterling money therein mentioned to be of the value of £ 212 15 9, and assessed the plaintiff's damages to £ 119 3 9 and costs, subject to the opinion of the Court on the following questions, viz.:

1. Whether the bond declared on is within the description of these debts which James Hogg is entitled to sue for, under the Act of 1786?

2. Whether the bond declared on is within the description of these debts assigned by Samuel Campbell to James Hogg, by the deed of assignment recited in the declaration?

3. Whether the defendant is entitled to a deduction of the judgment aforesaid as a set-off against the amount of the sum found by the jury?

Upon which questions the cause now came on to be argued. I admit that mutuality of debts is necessary, in order to a set-off; but the legal interest is only to be considered in a court of law. The assignment at best vests but an equitable interest in the assignee; and the interest in his hands is subject legally to all the encumbrances it was before had the assignment not been made. The share of the debts assigned is still legally considered due to the assignor. The assignment to third persons operates nothing, and so far as it regards the legal interest of the parties, leaves them precisely in the same situation they were in before it; and laying aside the act of Assembly, a judgment recovered against Campbell might be set off against a debt to be recovered by himself. That act, for the furtherance of justice, has vested the executors of the deceased partners with the right of suing; but the *Page 206 debts recovered do, in contemplation of law, belong to Campbell. The executors by legislative creation are the representatives of the copartnership, and acting for it in the place of the surviving partner, and are subject to all such demands and actions as he is, and, of course, to an action for this debt, and consequently to the set-off. Viewing the case in this light, both the interest of Campbell, and Campbell himself by his representatives, the executors, are now before the Court. This ought to be considered as the action of Campbell to recover a debt which, both now and when recovered, the law deems payable to himself; consequently the debt sued for, and the debt offered as a set-off, are mutual debts within the meaning of the act of Assembly, and are clear of the objection endeavored to be raised for want of mutuality. The act of Assembly is in derogation of the common law, and ought to be construed strictly. 5 Bac. Abr., 650; 10 Mod., 282. By it the executors of Robert Hogg are empowered to sue, naming themselves his executors; (240) but they do not sue as executors, they are put in the place of the surviving partner — they represent him; they are enabled to recover, not for the purpose of paying over to the assignee or his representatives, but for the purpose of paying the partnership debts; they are, for anything expressed to the contrary in this act, to pay the balance to the person entitled by law to receive it, and that person is the surviving partner. They can only recover in cases where he might, were he not disabled; and they are subject in like manner as he would be were the suit brought in his own name. The judgment pleaded as a set-off being founded on a cause of action which arose subsequent to the assignment by Samuel Campbell of his interest in the copartnership of Hogg and Campbell to James Hogg, cannot operate to discharge a debt due from the defendant to Hogg and Campbell, which debt appears to have been comprehended in the assignment. I am therefore of the opinion that judgment should be entered for the plaintiff.

opinion of the Court is, whether this judgment recovered by the defendant in the year 1789, can be set off in this action, which is founded on a bond to which the plaintiffs acquired an equitable title in 1780, and a legal one in 1786. As to the effect of the assignment unaided by the act of Assembly, I cannot subscribe to the argument which asserts that it is a mere nullity, and therefore to be entirely disregarded in a court of law. The common law rule which, for the purpose of avoiding maintenance, prohibits the assignment of a chose in action, does not, by its original meaning and spirit, require, nor has the practical application of it justified a *Page 207 construction so minutely rigorous. If a chose in action is assigned for lawful cause, as for a just debt, it is to some purposes valid even at law. If the lawful cause is wanting, it is neither good in law nor in equity. Bro. Abr., pl. 3. If one assigns a bond over, though it be not in its nature assignable, yet it is a good agreement that the assignee (241) shall have the money to his own use. 12 Mod., 554. In the same case there will be found an instance of a master's assigning an apprentice-bond to another, the contract for which was held good between themselves. An assignment of a chose in action has been held a good consideration for a promise. 2 Bl. Rep., 820. And the power of assignment has, for the convenience of commerce, been extended to respondentia bonds.Ibid., 1272. The case of Wench v. Kaly, 1 Term Rep., 619, and the others therein referred to, show how far and under what circumstances a court of law has organized the real, though not the nominal, parties to the suit, and protect their interest, whenever they were made known in a proper manner. All these cases serve to show that regard has been paid to such transactions to a certain degree at least.

But the case of Derring v. Carrington, 12 W., 3 B. R., proceeds to a still greater length in the protection of such rights. "Where a bond is assigned over with a letter of attorney therein to sue, and a covenant therein not to revoke, but that the money should come to the use of the assignee, although the assignee be dead, yet the Court will not stay proceedings in a suit upon a bond in the obligee's administrator's name, though prosecuted without his consent, for that those assignments to receive the money to the assignee's own use, with covenants not to revoke, and also with a letter of attorney in them, although they do not vest an interest, yet have so far prevailed in all Courts that the grantee has such an interest that he may sue in the name of the party, his executors and administrators." It seems to me that on the authority of this case a court of law might take notice of such an assignment as is there described, as to all purposes except suing in the name of the assignee; for if he may use the name of the obligee, and even of his representatives after his death, against their consent, and prosecute the suit to judgment, notwithstanding any attempt on their part to stay the proceedings. If he may do these things, ought his right to be defeated by a release given to them, or payments made after notice of the assignment, or by any supervenient claim against the obligee? (242)

The great change which has taken place in the contracts of men, from the improved state of society and the increase of commerce; the desire of giving facility to these transactions by which the circulation of a great proportion of the wealth of the country is promoted, *Page 208 and the superior estimation in which personal property is now held from what it formerly was, have contributed gradually to relax the rule from the rigor in which ancient writers have laid it down, as far as it respects personalty. Indeed, the rule itself contemplates a distinction between a chose in action real, and a chose in action personal; for Broke, after stating an instance, wherein a chose in action personal may be assigned, proceeds thus: "But a chose in action real, as entry he cannot grant over, and it is not like to a chose in action personal or mixed, as debt," etc. Hard. pl., 14. I am aware, and candor induces me to state, that many of the decisions I have referred to have been considered by an able Judge as usurpations of a court of equity. Bauerman v. Radenius, 7 Term Rep., 666. To this opinion I must oppose the observations of another able Judge, inMaske v. Miller, 4 Term Rep., 340, the practice of this country (in respect of which I will state two cases in addition to those formerly mentioned; one was the case of Fleming v. Theames, tried at Fayetteville, in which I was counsel: It was an action of covenant brought upon an agreement for the delivery of specific articles; the interest in the paper was fairly assigned to a third person, and a memorandum to that effect was indorsed upon the writ. Before the trial, a release was executed by Fleming to Theames, who attempted to avail himself of it, but the Court, without hesitation, rejected it. The other, ____________ v. Wilkinson, was tried before Judge HAYWOOD and myself at Halifax October Term, 1799, the circumstances of which were nearly similar). And lastly, though with less confidence, my own opinion, that it is conformable to a correct, though liberal interpretation of the law.

If justice can be attained in a court of law, without violating (243) the fundamental maxims upon which it proceeds, the parties ought not to be turned aside by refinements merely technical. What has been so often and so beneficially done, may safely be followed; and the security of men's rights requires that it should be, if upon examination it does not militate with those established principles which it is our duty to preserve.

Secondly. But the Legislature, in 1786, confirmed what the parties had done in 1780, and added the only circumstance it required to give it complete legal validity, the right of suing in the name of the assignee. The act does not profess to interfere with the rights of third persons; nor ought it to receive a construction that will in the least degree impair them. Whatever claim then existed against Campbell, in the shape of legal set-offs, were preserved to his debtors, who, if they might have enforced them against him at the period of the assignment, may also, as I conceive, against his assignees. This is a fair construction of an *Page 209 Act of Assembly authorizing an assignment for a particular purpose. Even in negotiable instruments, if indorsed after they become due, the law is different on account of the general quality of negotiability conferred on them by statute. But what were the rights of the defendant when the assignment was confirmed? They were altogether vague and indeterminate, possessing no legal existence, and manifestly incapable of forming the subject of a set-off. Until judgment was rendered for the damages assessed by the jury, the defendant had no claim for any specific sum; in legal consideration, his right was not merely defined, but acquired by suit and judgment; and when this took place, Campbell was no longer his creditor.

It is worthy of remark that the preamble of the act states that the assignment was made to James Hogg, one of the executors and devisees of Robert Hogg, for a good and valuable consideration; and the inconvenience sought to be remedied is the disability of the executors of Robert Hogg to recover the partnership debts, and thereby to carry the will of Robert into execution, and pay his just debts. These two circumstances strongly indicate that Robert Hogg was substantially, as well as formally, entitled to all the partnership rights, and that (244) the recoveries authorized by the purview were to be applied according to the direction of his will. But however this may be, it is clear the act gives them a right to recover all that Campbell himself was entitled to at that time. More than this would be derogatory to the rights of others not parties to the act, and therefore unjust. Less than this would be to leave the rights of the assignees at the mercy of Campbell, who, if he could rightfully charge them with a shilling after the assignment, either by his tortious acts or by contracting debts, might encumber the property assigned to the full extent of its value, and thus render the Act of Assembly nugatory. For these reasons I think the plaintiff should have judgment.

I am of opinion that the bond declared on is within the description of those debts which James Hogg, the plaintiff, is entitled to sue for, under the Act of 1786, and is also within the description of those debts assigned by Samuel Campbell to James Hogg by the deed of assignment recited in the declaration, and for the reasons given the judgment obtained by the defendant against Campbell cannot be admitted as a set-off.

Judgment for plaintiff.

NOTE. — See same case reported in 2 N.C. 471, and the cases referred to in the note thereto. See also State Bank v. Armstrong,15 N.C. 519; Haywood v. McNair, 19 N.C. 283; Bunting v. Ricks,22 N.C. 130. *Page 210