Justice Marshall, who delivered the opinions in these cases, did not consider them as establishing the general proposition that the assignee of a chose in action, who could not sue thereon in his own name at law, might therefore do so in equity, is manifest from his opinion in the later case of Lenox v. Roberts, 2 Wheat. 373, in which the assignee of all the property of a banking corporation was allowed to maintain a bill in equity in his own name upon a promissory note which had not been formally indorsed to him, for the reason that, "as the act of incorporation had expired, no action could be maintained at law by the bank itself."

In Carter v. United Ins. Co. 1 Johns. Ch. 463, Chancellor Kent dismissed a bill in equity brought against an insurance company by the assignees of a policy of insurance; and briefly stated his reasons to be, that the demand was properly cognizable at law, and there was no good reason for coming into the court of chancery to recover on the contract of insurance; that the plaintiffs were entitled to make use of the names of the original assured in the suit at law, and the nominal plaintiffs would not be permitted to defeat or prejudice the right of action; that it might be said here, as was said by the Chancellor in the analogous case of Dhegetoft v. London Assurance Co. above referred to, that at this rate all policies of insurance would be tried in this court; and that the bill stated no special ground for equitable relief.

It was held by the Courts of Appeals of Maryland and Virginia, and by the Supreme Court of Tennessee in an opinion delivered by Judge Catron, (afterwards a justice of the Supreme Court of the United States,) that the mere fact of the assignment of a legal chose in action gave the assignee no right to invoke the jurisdiction of a court of equity. & Johns. 114. Moseley v. Boush, 4 Rand. 392. Smiley v. Bell, Mart. & Yerg. 378. The opposing decision in Townsend v. Carpenter, 11 Ohio, 21, is unsupported by any reference to authorities.

Adair v. Winchester, 7 Gill

The cases before Chancellor Walworth, of Field v. Maghee, 5 Paige, 539, and Rogers v. Trader's Ins. Co. 6 Paige, 583, contain no decision upon this point; and in the later case of Ontario Bank Mumford, 2 Barb. Ch. 596, 615, he said, "As a gener

rule, this court will not entertain a suit brought by the assignee of a debt or of a chose in action, which is a mere legal demand, but will leave him to his remedy at law by a suit in the name of the assignor;" and referred to the cases before Chancellor Kent and Vice Chancellor Shadwell, and in the courts of Maryland, Virginia and Tennessee, already cited.

The statement in Story Eq. Jur. § 1436 a, that "if a legal debt is due to the plaintiff by the defendant, and the defendant is the assignee of a legal debt due to a third person from the plaintiff, which has been duly assigned to himself, a court of equity will set off the one against the other, if both debts could properly be the subject of a set-off at law," is pervaded by the same error that we have considered.

The decision of the Vice Chancellor in Williams v. Davies, 2 Sim. 461, by which a creditor appears to have been restrained in equity from taking judgment and execution at law on a debt of one to whom he owed a larger sum, is obscurely reported, and was disapproved by Lord Chancellor Cottenham. Clark v. Cort, Cr. & Phil. 154, 159. Rawson v. Samuel, Cr. & Phil. 161, 178. In Clark v. Cort, the bill upon which the set-off was ordered was by the assignees of a claim which required the investigation of accounts and the application of a security, of which the court would have had jurisdiction if the suit had been by the assignor; and the Chancellor said, "The case, then, is not that of a mere assignee of a legal debt, coming into equity to have the benefit of a set-off which he could not have at law." In Rawson v. Samuel, he observed, "We speak familiarly of equitable set-off, as distinguished from the set-off at law; but it will be found that this equitable set-off exists in cases where the party seeking the benefit of it can show some equitable ground for being protected against his adversary's demand. The mere existence of cross demands is not sufficient." And see Watson v. Mid Wales Railway, L. R. 2 C. P. 593; Spaulding v. Backus, 122 Mass.

553.

In this Commonwealth, the assignee of a chose in action has an adequate and complete remedy at law, in the right to maintain an action thereon in the name of his assignor, or cf his executor or administrator, without his consent, and even against his protest, at least upon giving him, if seasonably demanded, a

bond of indemnity against costs. Dennis v. Twitchell, 10 Met. 180, 184. Rockwood v. Brown, 1 Gray, 261. Bates v. Kempton, 7 Gray, 382. Foss v. Lowell Savings Bank, 111 Mass. 285. In any action at law, brought by Brooks in the name of Bigelow, to recover the sums due him from these two plaintiffs under the license, they could set off the demand, under the other contract assigned to them, of Joseph H. Walker against Bigelow, if Bigelow had notice of such assignment before bringing his action. Gen. Sts. c. 130, § 5. Cook v. Mills, 5 Allen, 36, 38. Their neglect to give such notice cannot entitle them to demand the interposition of a court of equity. Wolcott v. Jones, 4 Allen, 367.

The bill shows no case for an account that cannot be taken at law. Badger v. McNamara, 123 Mass. 117. It cannot be maintained to restrain a forfeiture; because it does not show that here is any danger of irreparable injury, therein differing from Florence Sewing Machine Co. v. Grover & Baker Sewing Machine Co. 110 Mass. 1. It cannot be maintained under the Gen. Sts. c. 113, §.2, to reach and apply, in payment of a debt, property or rights of a debtor which cannot be come at to be attached or taken on execution in a suit at law against him; because it is not framed in that aspect, and because the statute relates to rights of property, or claims of the debtor against third persons, and does not extend to claims of the debtor against the plaintiff himself. Crompton v. Anthony, 13 Allen, 33, 37. It cannot De maintained for discovery; because it cannot be maintained for relief, and does not show that any discovery is required in aid of proceedings at law. Pool v. Lloyd, 5 Met. 525. Ahrend v. Odiorne, 118 Mass. 261.

Demurrer sustained, and bill dismissed.

J. J. Storrow, for the defendants.

G. F. Hoar, (F. T. Blackmer with him,) for the plaintiffs.

ELMER LINCOLN vs. OLIVER S. WILBUR.

Bristol. Oct. 24, 1877.- Aug. 31, 1878. LORD & SOULE, JJ., absent.

Under the U. S. St. of June 22, 1874, § 12, knowledge, on the part of a purchaser, that the sale was in fraud of the seller's other creditors, is necessary to set aside the sale as to him.

On the issue whether a sale made by a person within four months of his bankruptcy was in fraud of his creditors, evidence of what he said, after the sale, and without the knowledge of the purchaser, as to the disposition of his property, and mortgages subsequently made by him, not shown to be connected with such sale or parts of a general scheme to defraud, are inadmissible, as against the purchaser. On the issue whether a sale was in fraud of the creditors of a person, who within four months thereafter was adjudged a bankrupt, the purchaser may be asked by his counsel if he knew at the time of the sale that the seller had a fraudulent purpose to make a preference, or was contemplating bankruptcy.

TORT, by the assignee in bankruptcy of Cyrus Leonard, for the conversion of a cow and a yoke of oxen. Writ dated November 27, 1876. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions in substance as follows:

On November 16, 1875, Leonard sold the cattle in question to the defendant, and delivered them to him the next morning. It was admitted that Leonard was insolvent at the time of the sale, and was, on March 3, 1876, adjudged a bankrupt, on his own petition. The plaintiff contended that the sale was in fraud of the bankrupt act.

Leonard, who was called as a witness by the plaintiff, was asked what conversation he had with the plaintiff, after the delivery of the cattle on November 17, 1875, with reference to his property, or the disposition he had made of it. The defendant objected, and the judge excluded the evidence.

The plaintiff then offered in evidence certain mortgages of personal property executed by Leonard to third persons on November 18, 1875. It appeared that all the property Leonard had on November 15, 1875, not exempt from attachment, was the property conveyed to the defendant and the property described in these mortgages, and that the value of the whole property was about $800. It also appeared that, at the time of the sale to the defendant, Leonard was indebted to different persons, to an amount above $2000. The mortgages offered in evidence were excluded.

The plaintiff called Lyman Wilbur, who testified, among other things, as follows: "I had a talk with the defendant, within a day or two after November 18, 1875. The defendant asked me if I had heard anything from Lincoln, referring to the plaintiff, I said No.' He then asked if Leonard owed my son. I told him that he did; he asked how much; I told him about $280. Wilbur then said, 'Leonard is too smart for Lincoln; will Lincoln sue Leonard? If Lincoln sues Leonard, he will go int chancery.' He asked me what Leonard had given my son for security. I told him, as far as I could remember. At another time he said Lincoln would not get much, but the other creditors would get their pay. At another time, after the bankruptcy, he came to my house and asked my son to sign to give Leonard his discharge in bankruptcy; he spoke about Leonard's going into bankruptcy. I told him I did not think it was right that some should get all their pay and others nothing. I asked him how he could make it out that he could put in a claim for $100, when he had received $120. He said he could put in other things to make it $100." There was no evidence, by either party, as to whether the defendant had met Leonard between the time when the defendant had received the cattle of Leonard and the date of the first talk with Lyman Wilbur. The plaintiff offered evidence tending to show that Cyrus Leonard's financial reputation for a year previous to the sale to the defendant was bad, and it appeared that for some years previous he was slow pay, and that his financial reputation had continued about the same. The plaintiff again offered the mortgages in evidence; but the judge excluded them.

The defendant was asked by his counsel, "Did you know at the time of the sale that Leonard had a fraudulent purpose to make a preference under the bankrupt laws, or that he was contemplating bankruptcy?" The judge ruled, against the plaintiff's objection, that the question was competent, and the defendant answered that he did not. The defendant also testified that he lent Leonard $165 for thirty days on October 16, 1875, and that on November 16, 1875, he called on Leonard for payment; that Leonard said he had no money on hand, but had some cattle which he was intending to sell to raise the money, and would like to sell them to him, and thereupon the sale in question was made.