The opinion of the Court was drawn up by
Shepley J.The order named in the exceptions cannot be regarded as negotiable, because it was not drawn for any specific amount and it was payable only upon a contingency. It did however operate as an assignment of the amount which might be received. Cutts v. Perkins, 12 Mass. R. 206; Robbins v. Bacon, 3 Greenl. 346. And that would be sufficient to prevent any attachment of it as the property of the defendant, if there were not a suggestion, that it was invalid, and so ineffectual to transfer the property. Such an allegation having been made, the statute provides that the assignee may be summoned and become a party to the suit, and that the validity of the assignment may be tried and decided. Stat. 1821, c. 61, § 7. The language of the statute must be regarded as embracing all written transfers or assignments, whatever may be their form. The law must decide what is an assignment, and if decided to partake of that character it will be included in the class of instruments contemplated by the statute. This is indicated both by the language and design of it.
*255The acceptors of the order, who are summoned as trustees of the assignor, contend, that they ought not to be holden as his trustees because their contract with him has been discharged, and a new one made with the assignee. And that they would not be protected against a suit brought upon the order by the assignee. But the very question contemplated by the statute to be tried and determined is, whether there is any valid contract upon which the assignee can claim, and he is to become a party to the suit in which that question is to be determined. And if his title is adjudged not to be good, they will be released from any promise to him. And should they be adjudged to pay to the creditor of the assignor, they will be fully protected by that judgment, because they may offer it in evidence against the assignee, it being between the same parties. The case presents in principle only that of an assignment inter paries, where the creditor, debtor, and assignee of the creditor mutually stipulate for a payment by the debtor to the assignee.
Exceptions sustained.