Ashby v. Carr

40 Miss. 64 | Miss. | 1866

HaeRis, J.,

delivered the opinion of the coucrt.

The only point presented for decision in this case, is whether the assignee of an open account by delivery can avail himself of it as an offset, in a suit against him, by the open account debtor.

It is admitted by counsel for the defendant in error, that the case of Phipps et al., v. Shegogg et al., decided by this court at the December term, 1855, 30 Miss. R., page 241, would be conclusive of this case, if the assignment of the open accounts had been made in writing in this case as in that. In other -re-sj>ects, so far as the question before us is concerned, the cases are identical in principle. It is well settled that an assignee ot a chose in action by delivery alone is invested with an eguiidhle title thereto, which the courts of law will take notice of and protect, and hence the practice of bringing suits in the name of the open account creditor for the use of the transferee, and by statute in this State the usee is treated as the real party. It is provided that the suit shall not abate by the death of the nom/mal plaintiff, but shall progress to final judgment and execution, in like manner as if brought in the name of the usee, who is also made liable for costs as in other cases, and entitled to revwor in case of death, in the name of his representative. Revised Code, article 50, page 486. By a subsequent provision of our law, the assignee may sue in his own name, “ if the assignment be in writing.” Revised Code, article 42, page 485. But nothing further has been done by the legislature to change the rights of the assignee by delivery. Such a transfer invests him with the right to demand, sue for, and recover at law, in the name of the assignor, for his use, the amount of the account so transferred, which for all legal purposes becomes a “ demand'1'’ in his hands against the debtor. By article 98, page 493, of the Revised Code, it is provided that “ when a mutual indebtedness shall exist between the plaintiff and defendant, the defendant may plead payment and may prove and set off against this dema/nd of the plaintiff any debt or demcmd which he may have against theplaintiff,” etc. In view of our legislation andthe practice under it, the relation of debtor and creditor, between the debtor and assignee, is established by the transfer by delivery,, so far as the substantial rights of the parties are concerned, as fully as if they were the original parties contracting.

This view of the question before us, is commended by its convenience and its direct tendency to prevent a multiplicity of actions, and save -the expense of useless litigation. W,e feel, therefore, no hesitation in holding that an assignee of an open account, transferred by delmery, may avail himself thereof as a payment and set-off against the debtor, in any action commenced by him, after such ■•■ssignment against the assignee, upon proof of the account ami the fact of transfer, as fully as though the action had been between the original parties.

The ruling of the court below was adverse to this — for this reason the judgment is reversed, cause remanded, and a verme de novo awarded.