The plaintiff having taken the assignment, of the bond after it was due, took subject to the defences which could be made against the assignors.

The legal effect of the deed, executed by Woody, February 1861, was to transfer to Dixon, Davidson and Co., all of the. debts set out in Ritter’s receipt, except such as had been collected and accounted for, and to vest in them the equitable interest, with power to receive and collect for their own use,, and to take the management and control of the suit then pending on the bond of Ritter, and of all the subsequent proceedings. This was not a nakbd power, but one coupled with an interest, and if Woody had attempted after that to arrange the matter with Ritter and his sureties, Equity would have protected the right of the assignees, by injunction, against-pleading a release or dismissing the action, Ellis v. Amason, 2 Dev. Eq. 273.

The deed executed by Benbow, was the consideration of the deed executed by Woody, and its legal effect was to entitle Woody to a credit for the amount paid into the office or collected by the Sheriff, and to make it a payment on the bond of" Woody, the instant it was received by the Clerk or • Sheriff in discharge of the judgment which had been rendered against Ritter and his sureties. It was then the money off Dixon, Davidson & Co., and neither the Clerk nor Sheriff had a right to pay it to Woody. In fact the only reason for not. *103 giving Woody credit for it at the date of the deed, was because the amount could not then be fixed, but the instant it became fixed by collection under the judgment, the law applied it as a payment according to the intent of the parties. Hoke v. Carter, 12 Ire. 324. In that case Fleming sold a note to Hoke without indorsement. Suit was brought in the name of Fleming. The Sheriff collected the money and paid it over to Fleming. It was held that Hoke could maintain an action against the Sheriff for “money had and received,” on the ground that it became Hoke’s money by operation of law, as soon as the Sheriff collected it.

So in our case, so far from its being the duty of Woody to take the money out of the Clerk’s office and make a tender to the assignees, Dixon, Davidson & Co., he had no right to interfere with the money. It was not his, but had been appropriated by law, as a payment on the bond, according to the legal effect of the deed of Benbow, the agent of the assignees. It follows that his Honor erred in holding that a tender of the money by Woody to Benbow, was necessary to make it amount to a payment; and that the evidence offered of the judgment against Ritter, and that it had been paid off and discharged, was entirely sufficient.

Per Cubiam. Venire de novo.