delivered the charge of the court in substance as follows. The insurances, loss and abandonment have been admitted, though the time of offer of the latter to the company has not been agreed on. The notice of the assignments appears to be material in no other view, in this case, than from the inference deduced from thence, that the defendants were accessary to the loss sustained by the creditors of Gourdon. If the suits had been brought by him for his own use, the set off would clearly obtain against him, and operate as a defence pro tanto, because the counter demand had actually become due before the actions were instituted ; and if the insurance company have duly and fairly made their claim known, their right of set off continues against the assignees. Mr. Pratt, in his deposition, takes notice of the notes payable to the company, and says, they had not become due at the time of the assignment. But how could he have known of them, unless he had received notice thereof from the defendants ? and would he not be thus apprised and put on his guard ?
The law on the subject may be ascertained without much *333difficulty. The difficulty, if any, will depend' on the facts disclosed in evidence. To ascertain the law, it will be proper to premise some considerations relating to negotiable paper, and what instruments come under that denomination.
Bills of exchange-and notes payable to order in the city of Philadelphia, are properly negotiable paper, after such notes have been indorsed bona fide in the course of trade. The effect is,, that the holder may sue in his own name, and may recover the money from the drawer without any embarrassment whatever on account of any counter demands, or want of consideration, as between the drawer or maker and payee. Bonds may be assigned by our law, so as. to enable the assignee to bring an action on them in his own name, but without the other qualities *of negotiable paper, that is, if the obligor had before the *334] assignment any just demand against the obligee, which he could have set off against him if there had been no assignment, he may set off the same against the assignee, who takes the bond subject to all the equity that it was subject to before the assignment. This rule is however subject to one qualification. If the assignee, when he is about to take the assignment calls upon the obligor to know whether the whole money is due, if the obligor tells him it is a good bond, and is entirely silent as to any claim of his against the bond, he can never after open his mouth against the demand of the assignee.
A policy of insurance is not assignable in its nature, but is assignable in equity. 2 Atky. 557. It is not like a bill of lading, which is assignable in its nature, and the assignment of which will vest the absolute property in the goods assigned to the as-signee. A policy of insurance in its qualities resembles a bond for payment of money at a future day, more than any other instrument. They are both dioses in action. It is only by a particular act of assembly that the assignee may bring the action in his own name, if the assignment be sealed and delivered in the presence of two subscribing witnesses ; but the law does not prevent the obligor from shewing a want of consideration, or setting off any counter demand against the obligee.
I have before mentioned, that it is incumbent on the assignee of a bond to call upon the obligor to know the quantum of the debt due. I take it to be likewise incumbent on the assignee of a policy, to call upon the underwriter and inform him before any account of a loss, and to know if he has any thing to set off against the policy, in case a loss should happen. If the underwriter had this notice, and either makes no objection or claim, or is totally silent as to any claim, I should consider the assignee of the policy in the same condition as the assignee of a bond under the same circumstances, and that both are entitled to recover, notwithstanding the underwriter on the policy, or the obligor in the bond, should afterwards discover that they had a counter demand, and that their mouths are stopped by their ac*334quiescence or silence, otherwise m both cases it would lead to á deception.
Cited in 17 S. & R. 289 in support of the decision that in debt on a bond, at the suit of an assignee, it is a good defence, under the plea of payment, that the obligor, before he knew of the assignment, and before the bond became due, had become bound as surety for the obligee, in sums exceeding the amount of the bond, and had been obliged to pay them. Cited in 4 Wh. 73 to show that a policy of insurance is assignable in equity. Messrs. Rawle and Dallas, pro quer. Messrs. E. Tilghman, Ingersoll and Moylan, pro def.The chief question then in this case, is a question of fact, whether there was any notice given to the insurance company of the assignment, and whether they either by their acts, words or silence waived giving any intimation of their demands against the assured. We will only add that the underwriters are acquitted, unless the plaintiff or his creditors suffered by their default, in not letting their claim be shewn.
*The jury found for the plaintiff, but that the defendants [*335 were entitled to the defalcation.