Valentine v. . Holloman

. Dick, J.

The plaintiff after the commencement of this suit, for a full and valuable consideration, assigned his claim to a purchaser. This assignment gave an equity to the purchaser in the chose in action sued upon, and authorized him to continue the suit in the name of the plaintiff. The plaintiff became a trustee of the purchaser, and his subsequent, bankruptcy did not affect the rights of the cestui que trust. The assignee in bankruptcy has no interest in the suit, and no'right to be substituted as plaintiff. The assignment in bankruptcy does not pass trust estates, but only such property as the bankrupt has an equitable as well as a legal title in, and which is applicable to the payment of his debts. Bankrupt Act, sec. 14, Eden on: Bank. 244.

As this suit was commenced before the adoption of the Code, the note offered in the defence can not be allowed as a counter claim. Teague v. James, ante 91, Gaither v. Gibson, Ib. 93. It can not be allowed as a set-off, as in a Court of law the right of set-off only exists as to mutual debts subsisting between the parties to the action. The endorsement, of the note to the testatrix of the defendant was void, as she was dead at the time and could not be a party to the contract of endorsement. The doctrine of equitable set-off, so much... insisted on in the defence, is not applicable to suits at law, and can be administered only in Courts of Equitable jurisdiction. Tbe Code bas now made ample provision for tbe adjustment of tbe equitable as well as tbe legal rights of parties to a civil action, but this case was an action . commenced and founded on a contract made prior to tbe ratification of tbe Code, and does not come witbin tbe operation of tbe new system of procedure. C. C. P. sec. 8,- sub. 4.

Tbe judgment of tbe Court below is reversed, and a venire, de novo awarded.

Let this be certified &c.

Per Curiam, Venire de novo.