Sec 843

It is elsewhere shown that three theories have been advanced as to the law to which a debt is subject: 1, that of the lex loci contractus; 2, that of the debtor's domicil; and, 3, that of the creditor's domicil.2 The prevailing and better theory is that the law of the creditor's domicil is to control.3 But so far as concerns the form and practice of set-off, the lex fori decides.4

Sec 844

To enable the original debtor to set off against the assignee a debt due the original assignor the debt must be due at the time of the assignment.5 In other words, none but actionable debts can be set off.6 Hence no set-off acquired against the assignor, after notice of the assignment, is good against the assignee.7 Nor will a release by the assignor, or any other hostile action on his part, after due notice has been given, affect the assignee's claim.8

Equities to be determined by the law to which the debt is subject.

Set-off must be due at time of assignment.

1 See Stephens V. Venables, 30 BeaV. 625; Watson V. R. R., L. R. 2 C. P. 593. 2 Wh. Con. of L. sec 360 et seq.

3 Smith V. Buchanan, 1 East, 6; Caskie V. Webster, 2 Wal. Jr. 131; Braynard V. Marshall, 8 Pick. 194; Mead V. Dayton, 28 Conn. 33; Clark V. Peat Co., 35 Conn. 303; Pond V. Cooke, 45 Conn. 132; Goodwin V. Holbrook, 4 Wend. 377; Guillander V. Howell, 35 N. Y. 657; Speed V. May, 17 Penn. St. 91; Poe V. Duck, 5 Md. 1; Keyser V. Rice, 47 Md. 203; Klein V. French, 57 Miss. 662. In Kirtland V. Hotchkiss, 100 U. S. 491, Harlan, J., speaking of a debt due from a person domiciled in one state to a person domiciled in another, said: "That debt, although a species of intangible property, may, for the purposes of taxation, if not for all others, be regarded as situated at the domicil of the creditor.".

4 Supra, sec 841; infra, sec 1009 et seq.

5 Infra, sec 1021-5. As to release, see infra, sec 1038. Hutchinson V. Reed, 3 Camp. 329; Gledstane's case, L. R. 1 Ch. 538; Rawley V. Rawley, L. R. 1 Q. B. D. 460; Avery V. Russell, 125 Mass. 571; Martin V. Kuntzmuller, 37 N. Y. 396; Roberts V. Carter, 38 N. Y. 107; Fuller V. Steiglitz, 27 Oh. St. 355; Williams V. Helme, 1 DeV. Eq. 151. 6 Infra, sec 1017.

7 Which V. Keeley, 1 T. R. 619; Weeks V. Hunt, 6 Vt. 15; Blake V. Buchanan, 22 Vt. 548; Halloran V. Whitcomb, 43 Vt. 306; Upton V. Moore, 44 Vt. 552; Dix V. Cobb, 4 Mass. 508; Goodwin V. Cunningham, 12 Mass. 193; Bush V. Lathrop, 22 N. Y. 535; Roberts V. Carter, 38 N. Y. 107. See, also, Greene V. Darling, 5 Mason, 201; Bart-lett V. Pearson, 29 Me. 9; Willis V. Twambly, 13 Mass. 204.

8 Alner V. George, 1 Camp. 392; Dix V. Cobb, 4 Mass. 508; see Webb V. Steele, 13 N. H. 230.

Sec 845

To protect the assignee it is proper that notice should be given of the assignment to the debtor. If he should pay innocently, without notice, the original creditor, after the assignment, however fraudulent the reception of the money may be on the part of the original creditor, the payment will preclude a recovery by the assignee from the debtor on the same debt.1 The same protection is given to the debtor should he pay bona fide to the assignee of whose assignment he is first informed.2 - By the Roman law, prevailing in Scotland, an assignment does not operate until notice to the debtor, and an attachment after the assignment, but prior to notice to the debtor, overrides the assignment. By the Eng-glish law, the assignment, so it has been held, works an equitable transfer of the debt as against attaching creditors without notice. It has been held in England that if a debt due by a Scotch debtor to an English creditor be assigned in England, the debt is equitably transferred to the assignee as against a subsequent Scotch attaching creditor, though the notice to the debtor of the assignment was not given until after attachment laid.3 It was subsequently held that the claims of competing assignees, incumbrances, and attaching creditors rank from the time of notice to the debtor;4 although, when local statutes give priority of attachments according to date of imposition, priority must be determined by the law of the creditor's domicil.5 - It has been recently ruled in England that a second assignee who takes not from the original creditor, but from his legal personal representative, may in like manner gain priority by notice.1 - The notice is to be given to the debtor either in person or through his agent employed by him to make payment;2 and notice to one of two trustees is sufficient.3 No specific form is necessary for a notice. It is enough if the fact be put before the debtor in such a way as would lead a business man of ordinary prudence to take cognizance of it.4 - So far as concerns the debtor, or his baukrupt assignee, if there be no conflict as to assignments or attachments, no notice is necessary.5

Notice to debtor of assignment necessary to protect assignee.

1 Pollock, 3d ed. 226; Stocks V. Dobson, 4 D. M. G. 11; Felch V. Bug-bee, 48 Me. 9; Adams V. Leavens, 20 Conn. 73; Heermans V. Ellsworth, 64 N. Y. 159; Hinkley V. Walter, 8 Watts, 260; 9 Watts, 179; Gaullagher V. Caldwell, 22 Penn. St. 300; Miller V. Bomberger, 76 Penn. St. 78.

2 Stocks V. Dobson, 4 D. M. G. 11, 17; see Willes, J., L. R. 5 C. P. 594; and see generally Pass V. MoRea, 36 Miss. 143.

3 Solomons V. Ross, 1 H. Bl. 131, n.;.

Sill V. Worswick, 1 H. Bl. 691; Story, Con. of L. sec 395-6; and see comments in Wh. Con. of L. sec 364.

4 Loveridge V. Cooper, 3 Russ. 1, 38, 48, and cases cited Wald's Pollook, 204; Foster V. Cookerell, 3 Cl. & F. 456; see Judson V. Corcoran, 17 How. 612; Spain V. Hamilton, 1 Wall. 604.

5 See Braynard V. Marshall, 8 Pick. 194; Thayer V. Daniels, 113 Mass. 129; Muir V. Schenok, 3 Hill, 228; Guillander V. Howell, 35 N. Y. 657.