UPON the trial of this case, which was an action of assumpsit brought by the defendant in error upon the common counts for lumber sold, &c., the plaintiff below called one Harvey Briney as a witness, who testified that the defendant below was indebted to the witness by an open, unsettled book account for 1,700 feet of lumber, and that he, the witness, had sold the account to the plaintiff. After the testimony was closed, the defendant requested the Court to instruct the jury that an indebtedness of the defendant by an open, unsettled book account, to the witness Briney, could not be transferred to the plaintiff so as to enable the latter to sue it in his own *471name. But the Court refused to give this instruction and permitted the testimony of Brincy to go to the jury. The account testified to by Briney formed one of the items of the plaintiff’s bill of particulars. We think the instruction asked should have been given, or the testimony relative to that item excluded.