[122 Miss.

Opinion of the Court.

T. M. Evans, for appellant.

White & Ford, for appellee.

SMITH, C. J., delivered the opinion of the court.

During the progress of the trial in the court below a special bill of exceptions was taken by the plaintiff putting on the record certain rulings made by the trial judge. After the adjournment of the court the plaintiff petitioned the trial judge for permission to amend this special bill of exceptions in certain particulars, which petition was heard on notice to the defendant and was overruled. This petition, together with all of the proof and proceedings thereon, has been certified to this court by the clerk of the court below as a part of the record. Counsel for the appellee have filed a mo· tion requesting us to strike this petition and the proceedings thereon from the record on the ground that it is no proper part thereof. This motion is resisted by counsel for the appellant, and he has filed a counter motion, requesting us to amend the bill of exceptions in accordance with the prayer of the petition filed by him in the court below.

A bill of exceptions can be amended only "with the approval of the trial judge." Section 799, Code of 1906; section 587, Hemingway's Code. Consequently the order of the trial judge declining to amend the bill of exceptions as prayed for by the appellant is final and conclusive, so that the motion of the appellant to be allowed to amend the bill of exceptions in this court must be and is overruled.

The cause must be tried here on the bill of exceptions approved by the trial judge, and the petition for the amendment thereof and the proceedings had before the trial judge thereon cannot be looked to by this court in deciding the cause, and should not have been embraced

in the record thereof. The motion of counsel for the appellee to strike the same from the record will be sustained.

Sustained.

INTER-SOUTHERN LIFE INS. Co. et al. v. HUMPHREY.

[84 South. 625, In Banc. No. 21068.]

1. ASSIGNMENTS. Assignment of debt to secure note is assignment as collateral.

A debt due for commissions under an agency contract when assigned to secure the payment of a note is an assignment as collateral security, and not a general, unconditional assignment of the debt.

2. ASSIGNMENTS. Provision against assignment without debtor's authority does not prevent assignment as collateral.

The assignment of a debt as collateral security does not violate the stipulation in the contract against assignment, unless authorized by the debtor, because the prohibition against assign. ment merely contemplates a general, unconditional assignment, and not one as collateral security.

APPEAL from the chancery court of Leflore county.
HON. W. F. GEE, chancellor.

Suit by W. R. Humphrey, executor, against the interSouthern Life Insurance Company and others, for discovery and an accounting. Demurrer to bill overruled, and defendants appeal. Affirmed, and cause remanded, with leave to plead further.

Whittington & Osborne, for appellant.

The only question raised by the demurrer and now before this court for decision is whether or not the provision in the two contracts between Forrester and Log

gins and the insurance company prohibiting the assignment of commissions accruing under the contracts to Forrester and Loggins is valid and binding. The court will observe that not only did Forrester and Loggins assign to Mrs. Humphrey all claim and interest which they had to commissions accrued or thereafter accruing under their said contracts, but went so far as to authorize the said Mrs. Humphrey or her legal representative to collect said Commissions from the insurance companies, and also consented and agreed that all such commissions should be paid to the said Mrs. Humphrey.

Under the common law a chose in action or a claim or right to money to become due on a contingency was not assignable. 5 C. J. 846, 2 R. C. L. 595 and 596. Various statutes have been adopted by the different states making choses in action and all rights to property assignable. The usual test applied is whether or not the claim or right of action would survive to the personal representative of the assignor.

In any event, there is no question but what Forrester and Loggins would have had the perfect right to assign to Mrs. Humphrey the commissions earned or to be earned by them under said contracts, had it not been for the provision in the contract expressly prohibiting the same; and on the other hand, there can be no question but that such provision prohibiting the assignment of the premiums accruing under the contracts is perfectly legal and binding on the parties to the contracts, as well as all others claiming thereunder.

"The parties to a contract otherwise not assignable may render it assignable by incorporating a provision that it shall bind their assigns; or they may in terms prohibit its assignment, so that neither personal representative nor assignees can succeed to any rights in virtue of it, or be bound by its obligations, and an attempted transfer in such a case creates a simple per

sonal obligation which can be enforced only against the assignor." 5 C. J. 875; Burck v. Taylor, 152 U. S. 634, 38 L. E. 578.

Indeed, there is no dissent as to this proposition. Arkansas Valley Smelting Company v. Bedden Mining Co., 127 U. S. 379, 32 L. E. 246; Omaha v. Standard Oil Company, 55 Neb. 337, 75 N. W. 859; Zetterlund v. Texas Land & Cattle Co., 55 Neb. 355, 75 N. W. 860; Tibler v. Sheffield Land, Iron & Coal Co., 79, Ala. 377, 58 Am. Rep. 593; Barringer v. Bes. Construction Co., 23 Okla. 131, 21 L. R. A. (N. S.) 597; LaRue v. Groezinger, 84 Cal. 281, 18 Am. St. Rep. 179; Mueller v. Northwestern University, 195 Ills. 236, 63 N. E. 110, 88 Am. St. Rep. 194; Delaward County v. Diebold Safe, etc., Co., 133 U. S. 473, 33 L. Ed. 674; Devlin v. Mayer, 63 N. Y. 8, 50 How. Pr. 1-9.

As explained in the case of City of Omaha v. Standard Oil Company, supra, the reason and purpose of these covenants preventing assignments of contracts or of the avails thereof is that the assignor may not be troubled in determining at his peril which of contesting claimants are entitled to the fund, and then another object in view is to prevent the party making such an agreement from losing interest in the performance of the contract by divesting himself of all beneficial interest thereunder.

It has always, been and still is the rule that regardless of the statutes to the contrary, a purely personal contract or a contract involving the personal equasion or the performance of a contract by a party to the exclusion of all others, is not assignable.

We direct the court's attention to this fact, that in each and every case where the courts have held that an assignment of a lease contract as collateral security was not in violation of the provision against assignment, the decision has rested upon the fact that the actual transfer or vesting of the title in the assignee was not voluntary on

the part of the assignor; that the provision against assignment meant that the party making the agreement not to assign, should not assign voluntarily and in every instance the actual transfer and assignment has been by operation of law, or by decree of the court, or by sale of the lease, or an interest in land under an execution, or by bankruptcy of the party, in which last-mentioned case the assignment is made by virtue of the bankruptcy statute and not by any wilful act of the assignor.

In support of his contention, counsel in his argument before the chancellor cited 4 Cyc., 75, and the three cases cited in support of the statement laid down in Cyc. (which is also laid down in Corpus Juris. and the same three cases cited). These three cases are: Butler v. Rockwell, 14 Colo. 125, 23 Pac. 462; Norton v. Whitehead, 84 Cal. 263, 24 Pac. 154, 18 A. S. R. 172; Crouse v. Mitchell, 130 Mich. 347, 90 N. W. 32, 97 A. S. R. 479. The statement in Cyc. above referred to is as follows: "Stipulations against assignments are not intended to prevent assignfents as collateral, but parties may expressly or impliedly stipulate that an assignment shall make the contract void, and an assignment in violation of such stipulation would not vest any rights in the assignee."

We are not at war with this statement because as hereinabove indicated, we agree that the party to a contract cannot declare same breached or forfeited merely because the other party to the contract puts up his contract as collateral security, even though the contract contains a stipulation against assignment, but this proposition we undertake to say only applies to controversies arising between the original parties to the contract, by assignment from a party to the contract which does not prejudice in any way the rights and privileges of the other party to the contract. It has long been held that a provision against assignment of a contract or the avails thereof is solely for the benefit and protection of the