In Pennsylvania, where a transfer of certain accounts was made,
the assignee had only an equitable interest, and could not sue in
his own name. But when the suit was brought in Louisiana, where
there is no distinction between a legal and equitable title, he
could maintain the suit in his own name, and the assignment was
good evidence.
An exception taken to the refusal of a judge to sign a bill of
exceptions, under the circumstances of this case, requires no
further notice.
Page 62 U. S. 395
The ruling of the court below,
viz., that prescription
was interrupted by a litigation which was pending between the
parties shortly before the present suit was instituted, was, under
the circumstances of the case, correct.
The case is explained in the opinion of the Court.
MR. JUSTICE GRIER delivered the opinion of the Court.
Donovan was defendant below in an action for a balance of
accounts claimed as due by him to the firm of Owen & Ihmsen.
This claim had been transferred by that firm to one Frederic
Lorenz, and, after his death, transferred to Ihmsen, the plaintiff
below.
The cause was tried, by consent of parties, without the
intervention of a jury; consequently the exceptions to the
admission of testimony are irregular, and need not be particularly
noticed. Besides, we can see no good ground of objection to the
evidence of confessions and admissions of a party, consisting of
accounts rendered in a former controversy on the same subject,
before arbitrators. The award itself was not received by the court
as evidence of the amount of debt due, because it had been set
aside for some irregularity.
The objections to the admission of the paper showing the
transfers of the account were equally without foundation. By the
law of Pennsylvania, where these transfers were made, Ihmsen would
have an equitable interest in the account, but in that state, the
mere equitable assignee of an account would not sue in his own
name, such chose in action not being assignable at common law.
There the suit would have been brought in the name of Owen &
Ihmsen, the original creditors, for the use of Lorenz, Ihmsen, or
any other person holding the equitable right to the account. But in
Louisiana, where, by the rule of the civil law, there is no such
distinction between the legal and equitable title, Ihmsen, as
equitable owner, could
Page 62 U. S. 396
sustain the suit in his own name, and the assignments admitted
to prove his title were properly received.
This case was tried at April term, 1856. The president judge has
reported his finding of the facts, and his judgment thereon. Some
six months afterward, the defendants below made up a statement of
facts, to which the plaintiff refused his assent, and presented it
to the district judge, and demanded that he should seal a bill of
exceptions. This the judge properly refused to do, but signed a
bill of exceptions taken to his decision refusing to sign one. This
novelty in practice requires no further notice.
The only question of law arising on the facts of this case as
reported by the court was on the plea of prescription. On this
point, the court gave their opinion as follows:
"Without considering the questions whether the account in this
case is an open account, within the meaning of the statute of
Louisiana, or whether the statute operates upon demands that were
subsisting at its date, our conclusion is that the proceedings in
the fourth district court, relative to the award, were an
interruption of that prescription. There was a suit pending between
the parties, the present defendant being the plaintiff, which
embraced a portion of the matter of this controversy. It was
competent to the defendants, by instituting a demand in
reconvention, to bring up the whole of the controversy for a
settlement in that suit; and if that had been done, a legal
interruption would have resulted within the 3484th, 3485th sections
of the civil code.
Dreggs v. Morgan, 10 Rob. 120. This was
not formally done on the record, but the parties did, by consent,
that which we are bound to consider as having an equivalent
value."
"They came to an agreement that arbitrators selected by them
should have the power to decide who was the creditor of the
contesting parties, to settle finally 'without appeal' the amount
due on either part, and that the attorney of either party might
move for judgment on this award. It is clear, that had the
arbitrators proceeded regularly, and a judgment been rendered upon
it, that no exception could have been taken to the condition of the
pleadings in the pending suit, or that there
Page 62 U. S. 397
had not been a demand in reconvention. The consent in the
submission agreement implied a waiver of all pleadings of that
nature, and was a release of all errors in the preliminary stages
of the suit. Donovan appeared in the district court, and
successfully resisted a motion for judgment upon the award
rendered. But the code does not require that a suit should be
successfully prosecuted to operate as an interruption of
prescription. Trop. de Pres., sec. 561;
Dunn v. Kinney, 11
Rob. 247;
Baden v. Baden, 4 Ann. 468."
We see no error in this statement of the law, and
consequently
Affirm the judgment with costs.