The opinion of the Court was drawn up by
Shefley J.In cases arising under the trustee process, if the legislature had not provided, when the supposed trustee should disclose an assignment of his debt, that the assignee should be summoned in and be allowed to make proof, that the assignment was made bona fide, and for a valuable consideration, there would be *436no pnpd,e of ascertaining the validity of the assignment. For the purpose of affording such assignee the benefit of the provisions of the statute, the Court must consider the assignment itself in whatever form presented as prima facie evidence, that the debt has been assigned. And the cases cited by the counsel for the defendant arose under this statute provision,
The order in this case is not expressed to be for value received, and if it were so expressed, not partaking of the character of a bill of exchange or negotiable promissory note, it would not dispense with the proof of value, or consideration. Mandeville v. Welch, 5 Wheat. 282. It is true, that an order to pay to another, or to do some other act, may be an equitable assignment of the fund, or give an equitable right to exact performance; and in many cases it is not the duty, or important to the person upon whom it is drawn to jpqjjirpj whether the holder has paid any value for it, as he will in any event be protected in making payment as requested.
But if the assignor, before payment or performance, should countermand the order, it would be necessary for the holder to prove a valuable consideration to entitle him to the assistance of the Court for his protection. Prescott v. Hull, 17 Johns. R. 284, And in cases arising under the trustee process, the duty of the assignee is the same when he has become a party to the suit; the order or assignment being regarded as making a prima facie case only for the purpose of enabling him to come in and protect his rights.
In this case, the plaintiff might have countermanded the order before the note was delivered, and the effect could have been prevented only by the defendant’s proof, that he had received the order for a valuable consideration, and thereby acquired ap interest in the debt, for which the note was to be given.
The case finds also, that the St. Croix Manufacturing Company being indebted to the plaintiff) its agent had agreed to give a pote for the amount due, payable to the plaintiff or to Spencer Tinkham. The order of the plaintiff upon the agent to “ let Mr. Atwood have the note as we agreed for the balance due me,” appears to refer to the agreement before made, part of which was, that the note should be made payable to the plaintiff or to Tinkham, And the defendant taking the order with such a reference must be *437supposed to have been informed of the agreement, and to have known, that the note was to be so drawn. And it would be a wrongful act in him to direct it to be drawn in his own name. But the plaintiff might waive this wrong and claim to have it delivered to him.
Exceptions sustained and a new trial granted.