The plaintiff in error, Basnett, assigns that: “ It was error to proceed to a trial of the case and to render judgment therein against the defendant, without first disposing of the demurrer to the plaintiff’s declaration.’’
Syllabus 1 It is a well established rule that when the record does not show what was the ruling of the court below upon *779demurrer, the Appellate Court will consider that the demurrer was overruled.
The second assignment of error.is: That the court should have sustained the demurrer.
No reasons have been given showing error in the declaration, and no error being apparent, I consider the declaration sufficient in law and that the demurrer should have been overruled.
As to the third assignment of error that the court erred in giving the second instruction to the jury, viz: “That the execution and delivery of the promissory note for $408.00, mentioned in the pleas and evidence^ was not a payment upon the said $1,000.00 note, and that unless the jury should believe from the evidence that the defendant had paid the said note of $408.005 prior to his receiving notice or knowledge that said $1,000.00 note had been assigned, they should find for the plaintiffs for so much or such part of the said $1,000.00 note as remained unpaid at the time when defendant received notice or knowledge of the assignment of the said $1,000.00 note,” The exception is well taken.
The 14th sec. of chap. 144 of Code of 1860, declares: “ The assignee of any bond, note or writing not negotiable, may maintain thereupon any action in his own name which the original obligee or payee might have brought, but shall allow all just discounts, not only against himself, but against the assignor, before the defendant had notice of the assignment. ” That section “ applies only to writings not negotiable, and the note in this case was not negotiable ; and its only effect is to authorize the assignee of such writings to sue at law in his own name. The legal title still remains in the assignor, in whose name the suit at law may be brought. ” (Opinion of Moncure, J., in Davis v. Miller, &c., 14 Gratt. 13). “The assignee acquires only an equitable right with a capacity, expressly given him by statute, to assert it at law in his own name. But the legal title still remaining in the obligee or payee, aright of action is incident thereto; and the *780assignee may, at his election, sue at law in his own name’ or in of the obligee or payee for his benefit. (Moncure, J., in Clarksons v. Doddridge et al. 14 Gratt. 44). The assignee of dioses in action not negotiable, takes an equitable interest only, and until notice, he has no equity against the debtor which can be recognized and protected by a court of law or equity. Notice of the assignment must be given to the debtor by the assignee to prevent him from making payment to the assignor, and until he receives notice of the assignment, the debtor may safely make payments to the original creditor. Davis v. Miller, 14 Gratt. 12, 13.
Bouvier, in his Law Dictionary defines payment thus : “ That which is given to execute what has been promised; or it is the fulfillment of a promise. Solvere dieimus cum quis fecit, quod facere promisit. But though this is the general acceptation of the word, yet by payment is understood every way by which the creditor is satisfied or ought to be, and the debtor liberated: for example, an accord and satisfaction will operate as a payment, ” &c.
In Huffman v. Walker, 26 Gratt. 316, the court held: “ Payment of a debt is not necessarily a payment of money, but that is payment which the parties contract shall be accepted as payment.”
In Poole & Co. v. Rice, 9 W. Va. 73, the court held : “A note will not be regarded as an absolute payment or extinguishment of a precedent debt, unless it be so expressly agreed — whether the note received was that of one previously bound, or of a stranger; and it will not be so regarded, even when so expressly received, if such agreement was procured by fraudulent concealments and representations.”
In Dunlap’s ex’ors &c. v. Shanklin’s ex’or, &c., 10 W. Va. the court held: “Taking a note from the debtor, or a note of a third party, is no discharge of the debt, unless it is expressly agreed between the creditor and debtor that it is jin absolute payment thereof2 Greenl. Ev. secs. 516, *781519, 520, 521, and authorities cited, and 2 Parsons on Contracts, pp. 624, 684, &c.
Prom these authorities, and many others that might be cited, it seems to me the position assumed by the plaintiff in error, in the argument of this case, is tenable, “that the debtor, before notice of the assignment may, by contract with his creditors, thoroughly modify the legal relation subsisting between them, or may enter into a new and different contract, which shall by express words, constitute an extinguishment of the subsisting contract.” The assignee should be diligent in giving notice to the debtor, that he might know his rqal creditor; for without such notice, the debtor has every reason to consider the payee still his creditor, and any payment made to the payee, or new contract expressly entered into between them in extinguishment of the note, before notice of the assignment, is in contemplation of law a payment of the note, and the assignee cannot recover upon it as against the payee, if the defendant pleads payment, and files with his plea an account showing the nature of the payment relied upon, as was done in this instance. Hoffman v. Walker, 26 Gratt. 316-17.
The assignee in this case stood in the shoes of Hay-mond. Had Haymond sued on the $1,000.00 note, there can be no doubt that the defendant, the plaintiff in error, could have defeated his action by reason of the settlement evidenced by the receipt of March 29, 1861, if true, and that too by the plea of payment, certainly the assignee would be in. no better condition, unless the payee had notice of the assignment before said settlement. Hence we see there are instances where a new note may be a payment, and that our own Court has so held.
The instruction was calculated to mislead the jury, and should not have been given, because, whether the Syllabus 2 new note was intended as payment or not, is a question of fact for the jury. 2 Greenl. Ev. §521, and note 4. And the court should not have usurped the province of the jury by instructing it that the new note was not a *782payment. I am therefore of opinion that the verdict "shouldhave been set aside and a new trial awarded. The judgment should be reversed with costs, and the case remanded to the circuit court for a new trial to be had therein.