
    Scott Jones et al. v. Kansas City, Memphis & Birmingham Railroad Co.
    1. Pasties. Assignment. Interest in recovery. Tfsee.
    
    An agreement that a person named as nsee in a suit shall share in the recovery in compensation for his aid in collecting a claim, unaccompanied by any obligation to pay fees or costs, does not make him an assignee of any part of the demand.
    3. Same. Actions of tort.
    
    In actions of tort, usees have no rights that entitle them to recognition as parties litigant; but proof of right in the nominal plaintiff entitles him to a recovery.
    From the circuit court of Marshall county.
    Hon. Z. M. Stephens, Judge.
    This was an action against the railroad company for one hundred dollars damages for a mule killed, and was brought by the appellant, Scott, for the use of one Hargus. The nominal plaintiff testified, on cross-examination, to the facts appearing in the opinion of the court, whereupon defendant moved to dismiss the action on the ground that it was one arising ex de-licto, and could not be maintained in the name of the usee. The motion was sustained, and from the judgment of dismissal this appeal was prosecuted.
    
      Strickland & Gary, for the appellant.
    Where it appears, as it does in this case, that the usee had no interest in the suit, he will be disregarded. Railroad Go. v. Cantrell, 70 Miss., 329. The learned court below was led astray by the last paragraph in the opinion of the court in the above case. This being an action ex delicto, the court was of the opinion that there could be no usee, and that the mistake was fatal. Disregarding the fact that the right of the nominal plaintiff to recover had been clearly proven, and in such cases as stated by this court in the above case, the usee must be disregarded.
    Claims for damages arising out of torts in cases of this kind, stand upon the same footing as open accounts. The ancient doctrine that a claim of this kind could not be assigned, has been abolished in this state. They are now assignable, and, when assigned in writing, the assignee can bring an action in his own name. Railroad Oo. v. Paclmood, 59 Miss., 280.
    Should the court be of the opinion that a part of the claim was transferred, then the suit is properly brought, as it was not transferred in writing. However, we insist that there is ,no assignment of any kind, and therefore the usee must be disregarded.
    
      J. W. Buchanan, for the appellee.
    1. It will not be questioned that this is an action ex delicto, nor will it be questioned that in actions of tort there can be no usee; in other words, that the usee cannot maintain an action ex deUcto. This same question was raised in the case of the K. G., M. (& B. R. R. Go. v. Ganfrell, 70 Miss., 329. This court held in that case that, in actions of tort, there can be no usee, and if one is named, his right must be disregarded, and the plaintiff fail of recovery, unless the rights of the nominal plaintiff be proven. The fact that the assignee of a claim ex delicto cannot maintain a suit in his own name, does not militate against the proposition that the same cannot be assigned or given away. The maintenance of a suit is one proposition, and the right to assign the same, no matter what may be its nature, is a different proposition.
    2. I further submit that it was proper for the court to dismiss the suit on the grounds that the contract between the nominal plaintiff and the usee was champertous. The testimony of the nominal plaintiff (Jones) shows that the usee (Hargus) was to bring the suit, and was to have an equal part of the recovery, if any was obtained against the railroad company. Moody v. Harjjer, 38 Miss., 629.
    The testimony clearly shows that the nominal plaintiff turned the claim over to the usee to bring the suit, and for so doing he was to receive one-half of the recovery. This testimony clearly makes out the first proposition laid down by the supreme court, which makes this case one of champerty. The nominal plaintiff’s testimony is that he presented the claim to the usee for the purpose of suit. The suit was brought in the name of Jones for the use of Hargus. Section 869, code of 1892, provides that the usee may be required to secure or pay cost, and shall be liable therefor.
   Woods, C. J.,

delivered the opinion of the court.

There was no assignment of the claim sued on by Jones to Hargus, called the usee in the claim sued and in the proceedings. Hargus was not the assignee of the demand, but his agreement with Jones was only that he was to help Jones collect the claim, and J ones was to divide the recovery with him as compensation for his services. There is no agreement shown that Hargus was to incur any fees or costs in the effort to collect the claim. Jones, it appears, had become wearied and disheartened by repeated failures to collect his demand by his own unaided efforts, and he procured Hargus’ services to help in further efforts, and promised him one-half of the amount which might be recovered.

If the right to recover by the nominal plaintiff had been shown (as to which we express no opinion, inasmuch as that is not now before us), the case should have gone to the jury, and the usee named, and his rights, if he had any, should have been disregarded by the court. In Railroad v. Cantrell, 70 Miss., it was held that ‘ ‘ in actions for tort there cannot be a usee, and, if one is named, his rights must be disregarded, and the plaintiff will fail of recovery unless the right of the nominal plaintiff be proved. ” It is true, as argued by counsel for ap-pellee, that this is an action ex delicto, and that in tort there can be no usee, but that does not conclude the nominal plaintiff from recovery, if he proves his case, because he has improperly named some one as usee. The very case relied upon by counsel, the one we have just cited, holds that, in such case, the nominal plaintiff may recover, and the usee and his rights, if he have any, should be disregarded.

Reversed.  