to be sustainable. The rule of the common law was based on the idea, that to allow a party to sue on an assignment of a chose in action savored of maintenance, and tended to stir up litigation, and was equally applicable to all choses, except negotiable papers, forbidding the assignment of a bond or simple contract, as well as a right to sue for a wrong done the party in his person or property, and, as far as we can see, on precisely the same grounds. Thus Mr. Chitty, in his work on Pleading, vol. 1, s. p. 10, 3 Am. ed., says that choses in action are not assignable at common law, and so is the well-known principle. . But in stating what is meant by this, he says: “ Where a party with whom a bond, simple contract, or other mere personal contract, was made, has assigned his interest therein to a third person, the latter cannot in general sue in his own name, personal contracts being choses in action, which are not in general assignable at law, so as to give the assignee a right of action in his own . name, but he must proceed in that of the assignor, or if dead, his representative.” So Mr. Cornyn, vol. 2, p. 567, on contracts, lays down the rule of non-assignability that “no chose in action could be assigned or granted over at common law, because it was thought to be a great encouragement to litigiousness if a man were allowed to make over to a stranger his right of going to law.” This nicety, he says, however, is now disregarded, and the assignment is held to be “an agreement to permit the assignee to use the assignor’s name in order to recover possession.” Therefore, where a *4debt or bond is assigned over, it must still be sued for in tbe assignor’s name, “ the person to wbom transferred being rather an attorney than an assignee.”
On s. p. 54, Mr. Chitty, after referring to the-rule as to contracts, cited before, says: “The same-rule also prevails in the case of injuries ex delicto either to person, personal or real property.” It is true this refers to non-assignability, but if non-assign-ability did not prevent a party from suing in the name of the assignor for his use, no reason is perceived why the same result does ■ not follow in case of a right to sue for a tort. The reason for non-assignability in the one case is precisely the same as in the other, and is the same as now urged by counsel in this case, as tending to encourage parties to assign their right to sue the company, and thus increase litigation. I confess I do not feel the force of the argument to any great extent based on the idea of discouraging litigation, as I do not see the evil element in a free country of any ' legal right being asserted fairly in a court of justice. The costs necessarily incident to our litigation will always operate as a wholesome check on parties bringing merely experimental suits. The luxury is too expensive to be indulged in with much prospect of gain.
The rule, then, to be deduced from the above authorities is, that while not assignable so as to be sued on the name of the assignee at common law, yet for a long period practically the same result has been attained by using the name of the assignor for use of the assignee, the assignee being treated rather as at*5torney, or in the nature of one for the collection of the debt.
The case of Morrison v. Deaderick, 10 Hum., 342, is supposed to hold a contrary doctrine. It was simply held in that case, that where the suit was brought in a court of equity, in the name of an assignor for the use of the assignee, to have relief against a fraud, and the party in whose name the suit was brought died before decree, that a decree in favor of the assignee alone was void, because the act •of 1825 had no application to courts of equity, but only to courts of law, the assignor being held the real complainant. The former cause was reinstated on the docket, to stand in the same plight and condition as before the death of the assignor, and, as a matter of course, would proceed in his name for the use of the assignee. This view was taken of this -case in an opinion by the late Chief Justice Nicholson, at Nashville, some years ago, unreported, and is the fair result of the decision.
From this, we hold that the suit in this ease was properly brought in the name of the assignor for the use of the assignee, and he may well recover in that form on the claim before us. If we confine this decision to the case before us, of tort to personal property, leaving other aspects of the question open for decision when they may arise, it can make but little difference, we may add, whether a rightful cause of action be prosecuted in the name of the party to whom it originally accrues, or in his name for. the use of another. The defendant has the benefit of all *6defenses in the one case he would have in the other,, and if the claim is unfounded, can safely rely on the protection of the courts to shield himself from wrong. If he is liable by law, it can be of no importance practically in whose name that liability shall be asserted as against him.
Dismiss the petition and affirm the judgment.
Cooper, J.,delivered an opinion, as follows:
This suit was commenced before a justice of the peace by a warrant which summoned the East Tennessee, Virginia and Georgia Railroad Company to-answer the complaint of J. It. Henderson, for the use and benefit of J. L. Mathis, of a' plea that it render unto said plaintiff the value of a cow belonging to said J. R. Henderson, which was lately, by the locomotive and employees of said company, killed, to the plaintiff’s damage under two hundred dollars. The justice gave a judgment against the company for $32.50. damages. On appeal by the company, and trial in the Circuit Court, the jury found the matters in dispute in favor of the plaintiff, and that the defendant owes the plaintiff forty dollars, upon which judgment was rendered. On the trial, J. L. Mathis, the person for whose use the suit was brought, proved that Henderson made out an account for the value of the cow against the company, and sold and transferred the account to the witness. Henderson himself proved that he sold the claim to Mathis, without recourse.
The parties have treated the claim as being for a *7debt, the tort being waived, and, in that view, the suit is upon a chose in action, in the usual form, and within the act of 1825, ch. 29, brought into the Code sec. 2795, and other sections. In such case, it is well settled that the right to use the name of the nominal plaintiff cannot be called in question by plea, or by evidence on the hearing, but only by a preliminary rule promptly made. Cage v. Foster, 5 Yer., 261; Lynn v. Glidwell, 8 Yer., 1.
It is still an open question, however, whether the doctrine of waiver applies to a pure tort unaccompanied by a conversion of the property of the plaintiff to the use of the wrongdoer or other person. In that view,- the question of the right of the injured party to waive the tort not being passed upon, the suit may be treated as in damages for the tort. This is the view taken by the other members of the court,, and it raises the point whether the evidence of assignment on the trial was admissible, and, if so, what effect it should have on the rights of the parties.
Yo reason occurs to me why the same rule should not apply to a suit brought by one person for the use of another upon a right of action in tort as applies to a similar suit upon a right of action in contract, namely, that the authority to use the name of the nominal plaintiff can only be tested by preliminary rule, not by plea, or evidence on the trial.
At common law, neither a right of action in contract or in tort was assignable, and for the same reason, that the assignment would tend to the offenses of champerty and maintenance. Of. course, in that *8state of the law, the bringing of a suit on either right of action in the name of one person for the use of another did not imply an assignment of the right of action, for it was not assignable, and could not be assigned. It simply implied that the person for whose use the suit was brought was the attorney to sue, not the assignee. This is still the law in a suit upon a right of action in tort if, as I think, the act of 1825, ch. 29, was intended to apply only to suits on rights of action in contract. In that view, the nominal plaintiff is still the real plaintiff, and it is a matter of no consequence to the defendant whether he sues for himself or for another. If, on the other hand, the act of 1825, ch. 29, is held to extend to rights of action in tort, then that act is a legitimate sanction to the bringing of the suit in the form adopted. In either view, the action is maintainable.