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As a general rule, however, a chose in action is said to be assignable in equity; and when assigned with notice to the person from whom it is due, courts of law protect the assignee against all prejudice from the acts of the assignor.
Chose in action, taken in its broadest latitude, comprehends not only a demand arising on contract, but also on wrong or injury to the property or person. 2 Woodd. Lect. 387; Toml. Law Dict. Chose ; Lilly's Abr., Chose in Action. But for the purposes of any sort of assignment, legal or equitable, I can nowhere find that the term has ever been carried beyond a claim due either on contract, or such whereby some special damage has arisen to the estate of the assignor. Executors at law take every thing belonging to their testator which can be considered as property, or form the subject of dealing in any way. By the equitable construction of a statute, they shall take rights of suit for such injuries to the testator's personal property as render it less valuable to the executor. 1 Williams' Ex. 507–513. Their right to all demands arising on contract, especially, is very comprehensive ; and yet, even they cannot sue for the breach of a marriage promise made to their testator, where no special damage is alleged, because the claiin is in nature of a personal wrong. Chamberlain v. Williamson, 2 . Maule & Sel. 408, 415. Lord Ellenborough there said, if such an action were maintainable by the executors, every action founded on an implied promise to the testator, where the damage subsists in his personal suffering, would also be maintainable ; and among them, for all injuries affecting the life and health of the deceased, all such as arise out of the unskilfulness of medical practitioners, and the imprisonment of the party brought on by the negligence of his attorney, &c.
The object and policy of the law is, that executors and administrators should take as far as possible every thing wearing the semblance of personal property in the testator or intestate, as a part of the assets or fund to pay debts. The same object is aimed at by bankrupt and insolvent acts, which declare what shall pass to commissioners, trustees, and assignees. Such statutes are very broad in their terms. Estate or effects is used in the English statute, 1 Cooke's Bank Law, 261; Property, real, personal, and mixed, in that of Pennsylvania, Ingr. on Insolvency, 50, and All the estate, real and personal, of every nature and description, in the bankrupt law of the United States, 1 Peters, 218. Yet I have not been able to find any case in England which, in respect to personal estate, has given the assignees a greater right than would go to an executor: none which vests in them a right of action for a personal tort, or indeed any other mere tort, while there are several cases in Pennsylvania which deny that such a right will pass. In Somner v. Wilt, 4 Serg. & Rawle, 19, 28, the claim was for an abuse of legal process against the plaintiff's goods. Duncan, J., said the claim was neither estate, credit nor effects. The action is personal, and would die with the person. In North v. Turner, 9 Serg. & Rawle, 244, a trespass de bonis asportatis was put by the court as an
excepceparable Irond battery; for a mall 54. In.
C. Solances that of)vents
exception, because it affected the bankrupt's property, and was therefore separable from the person. But not so says Gibson, J., as to slander, assault and battery, criminal conversation, &c.; and this was afterwards held of a claim for a malicious and excessive distress. O'Donnell v. Seybert, 13 Serg. & Rawle, 54. In the two last cases the court appear to measure the assignable rights which pass to executors, and those which go to assignees of insolvents by the same rule. In the last case, Duncan, J., instances that of an action on a penal statute which does not survive. So of an action on the case for a deceit. Shoemaker v. Kelley, 2 Dall. 213.
It has been denied under the bankrupt law of the United States that even a right to trespass de bonis asportatis will pass. Hempstead v. Bird, 2 Day, 293 ; 3 id. 272, s. c. Speaking on the same subject in Comegys v. Vasse, 1 Pet. 213, Story, J., says: " In general, it may be affirmed that mere personal torts which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment.” Gardner v. Adams, before mentioned, merely declares that a tort is not assignable so as to warrant an action in the name of the assignee. But the cases in respect to executors and insolvent assignees, and the like, certainly go very far to direct what we are to consider matter of property or estate, so far that it can be touched by a contract and made a subject of transfer between parties in any way, at law or in equity. If the right be not so entirely personal, that a man cannot by any contract place it beyond his control, it is assignable under the statutes of insolvency, or will on his death pass to his executors. The reason is because it makes a part of his estate, it is matter of property, and as such it is in its nature assignable. On the coutrary, if it be strictly personal, it is beyond the reach of contract; in the same sense we say of many rights, they are inalienable. No one would pretend that a man's person could be specifically affected by contract : though he should bind himself by indenture, equity could not enforce the agreement. Mary Clark's Case, 1 Blackf. 122. So of a man's absolute personal rights in general; as, his claim to safety from violence, and his relative rights as a husband, a father, a master, a trustee, &c. These, though professedly aliened in the strongest terms, cannot be specifically bound. Neither law nor equity will recognize the transfer. A claim of damages for a violation of any of these or the like rights appears, upon the authorities, to come within the same rule as being correlatively of the same nature. Such, clearly, was the case at bar. The injury done to Thomas was a violation of his rights as a master. Even had his servant been bound by indenture, she could not have been assigned ; and had he died, the indenture would have been void, Baxter v. Burfield, 2 Strange, 1266 ; though a contract that she should serve another would doubtless have bound him personally. Looking at the cases and at legal analogies, it appears to me the same clistinction must prevail here. In Caistre v. Eccles, 1 Ld. Raym. 683, it was held that though the assignment of an apprentice was void
as such, yet it operated as a covenant by the first master that the apprentice should serve the second, on which a suit would lie. This very distinction was taken in respect to a tort in Deering v. Farrington, 3 Keb. 304. The defendant sold to the plaintiffs £500, part of the loss by firing a ship, which should be recovered against any person, and held that though this could not operate by way of assignment, yet the defendant having got the money himself, he was liable to the plaintiff on an implied covenant. Hales, C. J., said the assignment did not transfer the duty, but was a contract to transfer the benefit ; and the law makes a covenant wherever the party will contravene his agreement by deed. This was not exactly a personal injury. The courts at this day might, as it respected property, hold such a claim assignable in equity ; but the case shows the principle which is still applicable to personal wrongs.
A right to reclaim money paid on an usurious consideration has been held assignable. Breckenridge v. Churchill, 3 J. J. Marsh. 11, 13; and in North v. Turner, 9 Serg. & Rawle, 244, it was decided that a claim for a trespass committed by taking and converting personal property, as it would pass to an executor, might be assigned in equity, so as to be bound specifically; though it was conceded that injuries . strictly personal could not. This case, it appears to me, goes the utmost length which can be allowed in the doctrine of equitable assignability. Assignments of personal injuries must still be regarded as mere covenants or promises, which we cannot directly protect against the interference of the immediate party, though the defendant have full notice of the effort to assign. If the person professing to assign will do prejudice to the right, by extinguishing or impairing it, the party with whom he deals must be left to his action for damages, according to the nature of the undertaking. If it be under seal, then he must bring covenant, as was held in Deering v. Farrington ; if without seal, then assumpsit.
Motion denied, but without costs.
The complaint allegeorse and peddler's what
McKEE v. JUDD.
(Reported 12 N. Y. 622.] ACTION commenced in the Supreme Court the 28th of July, 1851. The complaint alleged that on the 7th of August, 1850, one Meritt was the owner of a horse and peddler's wagon, and a quantity of goods contained in boxes in the wagon; and that on the day last named the defendant took the horse, wagon, and goods from the possession of Meritt, and sold, disposed of and converted the goods, to the value of eighty dollars, to his own use; and that he kept and detained the horse and wagon for several days, to the damage of the plaintiff of twenty
dollars, and then returned them to him. The complaint further stated that on the 1st day of November, 1850, Meritt, “ for a valuable consideration, by an instrument in writing under his hand and seal, sold, transferred and assigned his claim and demand against the defendant for said taking and detention of said horse and wagon, and the taking and converting of said goods to the plaintiff, who is now the owner of said demand.” The complaint demanded judgment against the defendant on account of the premises for $100, and interest from the 7th of August, 1850.
The defendant, by his answer, denied each and every allegation contained in the complaint. He further denied that Meritt had any assignable claim or demand against the defendant, or that he did assign or transfer any cause of action against the defendant to the plaintiff;
The answer also alleged that the property in question belonged to one Barnes, in whose possession it was ; that it was seized and taken by virtue of an attachment issued by a justice of the peace in favor of the defendant against Barnes, and that the goods, which were sold, were sold by virtue of an execution issued upon a judgment for about $70, recovered against Barnes in the suit commenced by the attachment and to satisfy the same; and that thereupon the residue of the property was returned to Barnes. There was a reply taking issue upon the allegations of new matter in the answer.
The cause was tried in October, 1852, at the Broome County Circuit before Mr. Justice Gray. The plaintiff gave evidence tending to prove that in August, 1850, the horse, wagon, and goods were owned by Meritt, and were in the possession of one Barnes only as his agent to sell the goods. It was further proved, that in the month last named a constable, by virtue of an attachment against Barnes and by the direction of the defendant, seized the property and detained it until he sold, a few days afterwards, sufficient of the goods to satisfy an execution issued against Barnes upon a judgment recovered in the suit commenced by the attachment, when he restored the horse and wagon and the residue of the goods to Barnes. The plaintiff read in evidence an instrument, dated the 1st day of November, 1850, executed by Meritt, whereby he assigned, conveyed, granted, sold, transferred and set over unto the plaintiff all his property and estate of every name, kind, nature, and description, in trust, to convert the same into money and apply the same to the payment of his, Meritt's, debts in the order of preference specified therein. It was proved that the goods sold by the direction of the defendant were worth from $75 to $80.
At the close of the evidence the counsel for the defendant insisted that the plaintiff was not entitled to recover, and requested the court to nonsuit him on the grounds : 1st. That the action was for & tort or wrong alleged and proved to have been committed before the assignment to the plaintiff, and that the cause of action therefor was not assignable; 2d. That there had been no demand of the property from
the defendant by the plaintiff, and no refusal by the former to deliver it to him. The court overruled said several objections and declined to nonsuit the plaintiff, and the counsel for the defendant excepted. The court further ruled and decided that if the jury found that the property belonged to Meritt, at the time it was taken and sold by the direction of the defendant, the plaintiff was entitled to recover. To this the counsel for the defendant excepted. There were some other questions in the case arising on the exclusion and admission of evidence, but they are not of general interest. The jury rendered a verdict in favor of the plaintiff for $86 damages, upon which judgment was rendered. The judgment was affirmed at a general term of the Supreme Court in the 6th district. The defendant appealed to this court.
D. 8. Dickinson, for the appellant. G. W. Hotchkiss, for the respondent. GARDINER, Ch. J. The action was not brought to reclaim the property taken by the defendant, or its proceeds, but to enforce the claim and demand accruing originally to Meritt, for the unlawful detention and conversion of the goods in controversy.
Whether this cause of action was assignable, so as to enable the plaintiff to sustain the suit in his own name, is the only important question now presented. The learned judge, who delivered the opinion of the Supreme Court was correct in saying that the terms of the deed were sufficiently comprehensive to embrace all the property of the assignor, and all the rights thereto appertaining. If a demand arising for a tortious conversion is assignable, I entertain no doubt that it passed by this conveyance. In The People v. Tioga Common Pleus, 19 Wend. 73, this subject was discussed by Judge Cowen with his usual learning and ability; he observes, in speaking of choses in action : " That for the purposes of any sort of assignment, legal or equitable, I can nowhere find that the term has ever been carried beyond a claim due either on contract, or such whereby some special damage has arisen to the estate of the assignor.” And his conclusion is, that demands arising from injuries, strictly personal, whether arising upon tort or contract, are not assignable, but that all others are. Upon the authority and reasoning of that case, and the decisions there referred to, the law may be considered as settled, that a claim to damage arising from the wrongful conversion of personal property is a chose in action that is assignable ; and as such, was transferred by the trust deed to the plaintiff. In the present Supreme Court there is a conflict of opinion, Judge Harris and his associates concurring in the views of Judge Cowen, and Judge Brown holding that a demand of that nature is not the subject of assignment. 7 Howard, 492 ; 18 Barbour, 500. If the demand was assignable, the action was properly brought in the name of the plaintiff, who had the exclusive right to recover the damages for the purposes of the trust. Code, $$ 111, 113. No demand or refusal was necessary to maintain the action. By the assignment the plaintiff succeeded to all the rights of the assignor ;