Supreme Court of United States.
*235 The cause was argued by Lee, for the plaintiff, and Swann, for the defendant.
STORY, J., delivered the opinion of the court.
The question upon these pleadings comes to this, whether a nominal plaintiff, suing for the benefit of *236 his assignee, can, by a dismissal of the suit under a collusive agreement with the defendant, create a valid bar against any subsequent suit for the same cause of action.
Courts of law, following in this respect the rules of equity, now take notice of assignments of choses in action, and exert themselves to afford them every support and protection not inconsistent with the established principles and modes of proceeding which govern tribunals acting according to the course of the common law. They will not, therefore, give effect to a release procured by the defendant under a covenous combination with the assignor in fraud of his assignee, nor permit the assignor injuriously to interfere with the conduct of any suit commenced by his assignee to enforce the rights which passed under the assignment. The dismissal of the former suit, stated in the pleadings in the present case, was certainly not a retraxit; and if it had been, it would not have availed the parties, since it was procured by fraud. Admitting a dismissal of a suit, by agreement, to be a good bar to a subsequent suit, (on which we give no opinion,) it can be so only when it is bona fide, and not for the purpose of defeating the rights of third persons. It would be strange indeed, if parties could be allowed, under the protection of its forms, to defeat the whole objects and purposes of the law itself.
It is the unanimous opinion of the court, that the judgment of the circuit court, overruling the replication to the second plea of the defendant, is erroneous, *237 and the same is reversed, and the cause remanded for farther proceedings.
Judgment reversed.[a]
[a] By the common law, choses in action were not assignable, except to the crown. The civil law considers them as, strictly speaking, not assignable; but, by the invention of a fiction, the Roman jurisconsults contrived to attain this object. The creditor who wished to transfer his right of action to another person, constituted him his attorney, or procurator in rem suam, as it was called; and it was stipulated that the action should be brought in the name of the assignor, but for the benefit and at the expense of the assignee. Pothier de Vente, No. 550. After notice to the debtor, this assignment operated a complete cession of the debt, and invalidated a payment to any other person than the assignee, or a release from any other person than him. Ib. 110. 554. Code Napoleon, liv. 3. tit. 6. De la Vente, c. 8. s. 1690. The court of chancery, imitating, in its usual spirit, the civil law in this particular, disregarded the rigid strictness of the common law, and protected the rights of the assignee of choses in action. This liberality was at last adopted by the courts of common law, who now consider an assignment of a chose in action as substantially valid, only preserving, in certain cases, the form of an action commenced in the name of the assignor, the beneficial interest and control of the suit being, however, considered as completely vested in the assignee as procurator in rem suam. See 4 T.R. 340. Master v. Miller. 1 Johns. C. 411. Andrews v. Beecker. 3 Johns. C. 242. Bates v. New-York Insurance Company. 1 Johns. R. 532. Wardell v. Eden, in notis. 3 Johns. R. 426. Carver v. Tracy. 11 Johns. R. 47. Raymond v. Squire. 4 Johns. R. 406. Van Vechten v. Greves. 12 Johns. R. 276. Westor v. Barker.
