I do not see that in considering this case, we are necessarily to come in conflict with the decision of this court on a motion in the same matter (as reported in 17 How., 341.) At page 343 of that case, Mr. Justice Davies expressly makes the distinction between a motion where the court will protect the attorney in his costs, and a suit to compel a set-off according to the provisions of the statute. And Mr. Justice Clerke, though concurring in the result of denying the motion, does not concur in the ground upon which it is placed. And no other justice gives any opinion. We may therefore proceed untrammeled by that case.
Mr. Terry comes into this case as assignee of a claim of his client, (who, according to the subsequent proceedings to obtain his discharge as a poor debtor, must have been then insolvent;) Terry taking the assignment to protect himself, if he could legally, to which there is no objection.
But an assignee of anything but commercial paper, when he takes it bona fide, is liable to all the equities which exist *48against the demand while in the hands of the assignor. And, with a view to carry this out in case of an assignment, pendente lite, the case in 11 How. (381) seems to assign the principle that should govern courts in allowing such an assignee to be made party to the suit. “ When a substitution cannot prejudice any right or remedy of the defendant, it would be almost a matter of course to permit it. When such a result would be produced by the change, the court would either refuse to permit it, or would grant it only on such terms as would protect the defendant from injury.” While, in the case before us, the assignee of Carter was allowed to come in ex parte, to the manifest injury of Roberts the defendant.
The opinion of Justice Davies, in Martin agt. Kanouse, (17 How., 148,) seems much sounder than his opinion above referred to; and the case he there cites (16 Wend., 446) seems to be a binding one, decided in the court of last resort.
It would seem that the set-off should be allowed, and that therefore the decision of special term must be reversed.
Clerke, J. I concur.