¶1The opinion of the court was delivered by
¶2It appears, from the agreement made by Starr & Bushnell, as attorneys of J. C. Heart & Brothers, that their whole debt was to be assigned to E. Johnson. It further appears that the whole debt was assigned and has been paid and satisfied to the.assignee, and he makes no claim thereon. It is agreed that the note sued by the present plaintiff, who is one of the firm of J. C. Heart & Brothers, was given to apply on the account, and was not credited. If it had been, the debt assigned would have been the same amount, but the account would have been less, the amount of the note. As J. C. Heart & Brothers did not credit the note, but treated the whole amount as due from the defendant, and as the account has been paid, it results that this note is paid, and it would be a fraud on E. Johnson, as well as the defendant, if this note should now bo enforced. The court below were therefore warranted in saying to the jury that these facts, if proved, constituted a defence. The charge was to this effect, and we see nothing exceptionable in it. The judgment is, therefore, affirmed.