Dissenting opinion by
Wells J.Where a demand is assigned, the assignee takes it subject to the equities subsisting between the parties, and also to the legal rights of the parties. The debtor having a counter demand, if it is not allowed to him, may file his account in set-off, or bring a cross action, in the same manner as if no assignment had been made. The assignment cannot abridge this right nor limit the legal claim to costs. Where demands are un-liquidated, the assignee takes them subject to all the legal rights of investigation, which the law allows. He cannot restrict the debtor to any one mode of judicial investigation. The mode prescribed by law, for determining the rights of the parties, is incident to the demand assigned.
In the present case, the defendant might have filed his account in set-off, and had the whole dispute settled at his own expense. But he was not bound to do so, by law or equity. He had a legal right to commence his action. The plaintiff might in that suit have offered to be defaulted for any given sum, or might have paid what was claimed in the cross action, or made a tender, retaining his own suit; but on the contrary, he litigates it until there is a large bill of costs, and then says, that his own judgment is not to be affected by those very costs which he has created. The defendant might have offered to be defaulted in the suit against him, but that could only protect him against the claim of the plaintiff. His own account would not have been allowed in that way. It is said he might have paid the balance, but it does not appear that the parties could agree upon the balance, and the litigation was to determine *18it. There does not appear to have been any more fault on one side than on the other, so far as I can see, not having a copy of the case.
Shall we establish the doctrine, that when a demand is assigned, the debtor shall be confined to some one legal mode of, ascertaining the balance ?
It is true the costs, which accrue, did not exist at the time of the assignment, but the assignee has given rise to them by his resort to the law, and his mode of resisting the claims of the debtor, as much so as the debtor has done.
A man who purchases an unliquidated claim, takes it with his eyes open, and knows that it is liable to litigation.
The legal rights of both parties exist with the claim and go with it, and it is not in the power of the assignee to debar the debtor from resorting to any mode allowed by law, to decide the differences between them, and he would do so effectually, if the judgments could not be set off. Does the assignee obtain new legal rights, impairing those which existed between the original parties ?
A & B have mutual accounts, the law prescribes the mode of adjustment. A’s is the larger one, he assigns it to C. C says to B unless you pay the balance, which- I claim, I shall 'commence an action against you in A’s name, and you must file your account in set-off. If you commence a cross action, which you have a right to do, still my judgment shall not be affected by the costs you may recover, and I will compel you to prove every item of your claim — and I will collect my bill of costs and the balance of the judgment out of your property, and you may look to A for your bill of costs.
The costs are the result of a right co-existing with the demands before the assignment.
The assignee takes subject to all, defences which might be made against assignor. Burnham v. Tucker, 18 Maine R. 179.