The opinion of the court was delivered by

— Upon the errors assigned to the defendant’s first and second points I am instructed by a majority of the court to say, that the payment of interest was not arrested by the notices from Marvin & Towner to King, Brown & Co. not to pay the debt. But there was error in the answer of the court to the fifth and sixth points. By the terms of the order of the 19th of March 1860, the acceptance of it was to be in full of all the claims of Marvin & Towner upon King, Brown & Co., excepting certain estimates. King, Brown & Co. became liable directly to Camp & King, the payees, and could not be relieved except by a return or surrender of their acceptance. After authorizing King, Brown & Co.’s acceptance in full of their claim, Marvin & Towner could not demand payment of the amount contained in the order without taking up the order, or offering to return it at the trial. Having placed' the defendants in the dilemma, they are equitably estopped from recovering until they restore them to their former standing.

It is supposed, however, that Marvin & Towner could maintain the action on the contract in the'name of Kelley, the legal plaintiff, and leave the ownership of the fund to be determined after-wards. In a case of mere equitable assignment, carrying with it no separate right of action to the assignee, this would be true; for the defendant, in such case, is not involved in the consequences of the controversy as to the ownership of the fund. Camp & King, treating the order as an assignment, might have used the contract itself as their means of recovery by uniting in the prosecution of the suit. But it is an answer to all this to say they were no parties, did not authorize the suit, and did not need its aid, having themselves a direct action against the defendants on their acceptance. Had the suit been brought for their use by their authority, the defendants could have been protected by requiring a surrender of the order, or moulding the verdict to suit the case. . But being no parties in law or equity to a suit not instituted by them, or under their authority, they could not be compelled to surrender the order, nor affected by the verdict. After the assignment, Marvin & Towner could not prosecute a suit without their authority, and implicate them in the consequences of a verdict. This becomes palpable when it is remem*41bered that the order was not for a specific sum, but for an unsettled account. Camp & King bad a right to protect their own interests by conducting their own litigation, in order to recover all that the acceptance would entitle them to receive.

The defence was therefore good in equity ; and the defendants could stand upon it till the order was returned, or the acceptance released by Camp & King.

Judgment reversed, and venire facias de novo is awarded.