Unknown County MsArchives Court.....Defrance, Charles 1834
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Deb Haines ddhaines@gmail.com December 8, 2005, 9:23 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

CHARLES DEFRANCE use of E. REESE vs. GEORGE DAVIS.

pages 69-71

The assignee of an open account, may maintain suit upon it for his use, in the 
name of the assignor. The rights of the assignee of an open account, are not 
affected by the subsequent insolvency of the assignor.

The statute of this state, rendering notes and sealed instruments negotiable, 
does not affect in any manner, the rights of the assignee of an open account.

This statute is similar to that of, Ann, rendering notes negotiable, except 
that it does not protect in the same manner, the interests of the bona fide 
holders of negotiable instruments, but leaves them on the same footing as the 
assignees of open accounts, except that the latter must sue in the name of the 
assignor, and the former may sue in their own name.

The questions involved in this case, were—1st. whether an open account was 
assignable, so as to enable the assignee to sue for his use, in the name of 
the assignor-2nd. whether the assignee of such open account holds an interest, 
which is not prejudiced by the insolvency of the assignor.

Turner and Metcalf for the plaintiff, contended—1st. Every interest which is 
capable of ownership is assignable, and consequently, the debt due from 
defendant to plaintiff was properly assigned to Reese, for whose use this 
action was brought, and that this assignment gave to Reese, a vested equitable 
interest, which could not be affected by the subsequent act of insolvency of 
Defrance, and the rendition of a schedule by him for the benefit of his 
creditors generally.

2nd. That Reese’s claim, being a vested interest, recognized by law, there 
must be some mode of securing it, and as at common law, a suit cannot be 
maintained in the name of the assignee, it results ex necessitate rei, that 
the suit must be maintained in the name of the assignor as trustee, for the 
use of the assignee.

Mr. Reed for the defendant contended. 1st. A chose in action, is not 
assignable at common law, and that is the law of this state, unless repealed 
or modified by our statutes. The statute of this state does not provide for 
the assignment of an open account, but only for the assignment of notes and 
other instruments. Our legislature, therefore, did not design to render open 
accounts assignable.

2nd. The amount due on this account is indeterminate, and a chose in action is 
not assignable, unless it be reduced to a certainty.


OPINION OF THE COURT.

This is an action brought on an open account, the defendant has plead, that 
after the debt was contracted, the plaintiff Defrance, took the benefit of the 
act for the relief of insolvent debtors, and assigned all his estate for the 
benefit of his creditors. The plaintiff replied, that before his insolvency, 
he transferred this debt to Ebenezer Reese, for whose use this suit is 
brought; to which replication, the defendant filed a general demurrer. The 
question therefore is, whether a debt due upon an open account, can be so 
transferred, as to authorize the assignee, to prosecute the claim, in the name 
of the assignor, as well after as before his bankruptcy.

No chose in action is assignable at common law, so as to authorize the 
assignee to sue in his own name, except negotiable instruments. But although, 
a chose in action may not be strictly assignable, always take notice of, and 
protect the rights of the person, in whom the beneficial interest is vested, 
and will not permit any one, after he has parted with all his interest in a 
debt, to have any further control over it; nor will the interest of the 
assignee be affected, by the subsequent bankruptcy, or insolvency, of the 
assignor. These principles are clearly established by numerous authorties.
	3 Bos. & Pul. 39, 3 East. 317. 5 Johns. 19. 1 Term. Rep. 619. 4 Mass. 
509. 2 Johns. cases 125, 126, 229. 2 Will’s. cases 102. 1 Bac. Abr. 437. 1 
Dal. 139, 263, 444. 3 Cranch. 193.

It is however contended on behalf of the defendant, that the assignee of a 
chose in action, will not be protected therein, unless the amount be 
liquidated and reduced to a certainty. We have not been able to discover any 
such distinction, as is here insisted on, and several of the cases above 
cited, recognizing the assignment of open and unliquidated accounts, are 
opposed to this position. It is also contended in argument, that our statute, 
in making promissory notes, and instruments under seal, negotiable, does not 
apply to any other description of debts. It certainly does not. If it applied 
to the present description of claims, this suit would have been more properly 
brought, in the name of the assignee; but this statute did not alter the law, 
as regards other debts not embraced in its provisions. Under the provisions of 
this statute, the rights of the assignee of notes and sealed instruments, are 
placed on no higher grounds, than the rights of the assignee of an open 
account, all being subject to precisely the same defence. The only difference 
created by this statute, between the assignee of an open account, and the 
assignee of notes and sealed instruments, is, that the latter can sue in his 
own name, whereas the former must use the name of the assignor. In most 
respects, except that regarding the rights of a bona fide holder of a 
negotiable instrument, this statute resembles the statute of Ann, making 
promissory notes negotiable. Yet that statute, as appears by the cases 
subsequent to its enactment, above cited, did not affect the rights of the 
assignee of an open account. It is therefore the opinion of the whole court, 
that in as much as the plaintiff’s replication states, that the debt was 
transferred for a valuable consideration, to the person now claiming us 
assignee, before the plaintiff's insolvency, and that fact is admitted by the 
demurrer, that the replication must be sustained, and the demurrer overruled.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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