Upon the facts agreed, the court are of opinion that the plaintiff is entitled to judgment.
The defendant was bound to set off the amount of the plaintiff’s execution, on Abbot’s execution against him, unless it is made to appear, by his return on the plaintiff’s execution, that such a set-off was not by law allowable. And this we think does not appear by the return. The return is, that at the receipt of the plaintiff’s execution, the defendant had in his hands an execution of said Abbot against said Porter, but that having had due notice of its assignment, at the' time it was put into his hands, he could in no way set off the one against the other. To justify the defendant, it should be made to appear, by his return, or otherwise, that Abbot’s execution had been lawfully, and in good faith, assigned to another person, before the plaintiff became entitled to the sum due on his execution. This does not appear with sufficient certainty. The defendant might have had notice that an assignment had been made, although such was not the fact. And if an assignment had been made, it might not have been made in good faith, but for the purpose of defeating the plaintiff’s right of set-off. Nor does it appear that the assignment was made before the plaintiff became entitled to the sum due on his execution, as the statute requires, in order to defeat his right of set-off.
It was argued for the defendant, that he had no means of ascertaining whether the assignment had been made in good faith, or not. But if so, his duty was to give notice to the plaintiff, and require from him a bond of indemnity, or he should have required the like bond from the party claiming under the assignment. But if, without requiring any bond of indemnity, and without sufficient evidence, the defendant undertook to decide against the plaintiff’s right of set-off, and his decision was wrong, he must be responsible.
Judgment for the plaintiff.