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this is a necessary consequence of the assignability of the claim, as distinguished from the property converted. 1 Selden, 344.

The judgment of the Supreme Court should be affirmed.

DENIO, JOHNSON, DEAN, and CRIPPEN, JJ., concurred. RUGGLEs, J., took no part in the decision.

HAND, J. (Dissenting.) This action is for taking and converting the personal property of one Meritt. Admitting that the assignment by the latter was a valid transfer of his choses in action and other personal effects that were assignable, the principal question in the case is ; Did the assignment in this case transfer a right of action for taking and converting personal property? The goods were sold on an execution in favor of defendant, and by his direction. But there was no proof that defendant himself took the goods before or after the sale, or converted them, except by directing them to be sold upon the executions; and the assignment was made nearly three months afterwards. The taking and conversion were therefore complete at the time the assignment was made, and the defendant then had no interest in or control over the property.

I had supposed that a mere right of action for a tort could not be assigned, either at law or in equity, except by means of some statutory proceedings. Gardner v. Adams, 12 Wend. 297; People v. Tioga Common Pleas, 19 id. 76; Thurman v. Wells, 18 Barb. 500; 2 Story, Eq. §§ 1039, 1040, g. 1048; Hall v. Robinson, 2 Comst. 293; 1 Font. 213, n. g.; Willard's Eq. 462. A cause of action arising from a tortious act will sometimes pass to the assignees of an insolvent, or to the assignees in bankruptcy. In those cases, there can be no objection on the ground of champerty and maintenance; and the criterion is whether the action is to recover damages for an injury to the property of the insolvent or bankrupt, or for a wrong personal to him. A solatium for an injury done to the person or personal feelings of the debtor cannot be assigned. But if the substantial cause of action arises from an act that diminishes or impairs his property, it passes to the assignees. Roseboom v. Mosher, 2 Den. 67, Bronson, C. J.; Beckham v. Drake, 2 H. L. Ca. 577; s. c., 11 M. & W. 315; 8 id. 846; Rogers v. Spence, 12 Cl. & Fin. 700; s. c., 13 M. & W. 571; 11 id. 191; Wetherell v. Julius, 10 Com. B. 267; Stanton v. Collier, 3 Ell. & Bl. 274; Milnor v. Metz, 16 Pet. R. 221; and see Gillet v. Fairchild, 4 Den. 80. The transfer in such cases is in compliance with a statute, and is generally in invitum. But where the act is done on the mere motion of the parties, the assignment of a bare right to bring an action for a mere tort has been considered void on the ground of public policy. There is nothing in the Code which abrogates this salutary principle; indeed the question is one of right or title and not of remedy.

There are other questions in the case; but on the objection already noticed, the judgment should be reversed.

MARVIN, J., concurred in the foregoing opinion delivered by Judge Hand. Judgment affirmed.

PATTEN v. WILSON,

SUPREME COURT OF PENNSYLVANIA.

[Reported 34 Pa. 299.]

ERROR to the Common Pleas of Allegheny County.

1859.

This was an attachment execution issued by a justice of the peace on a judgment in favor of James Patten, for the use of John South, against Thomas M. Wolf, which was served on William Wilson, as garnishee. The garnishee appealed from the judgment of the justice.

On the 23d of March 1858, Thomas M. Wolf, the defendant, recovered a verdict in the District Court of Allegheny County, against William Wilson, the garnishee, for the sum of $100, in an action of trespass vi et armis, for false imprisonment. On the 26th March, Wolf's attorney assigned this verdict, without consideration, to John R. Large; and on the 29th, judgment was entered on the verdict, and this attachment was laid.

It appeared in evidence, on the trial, that S. H. Geyer was Wolf's attorney in the action against Wilson; that Wolf had offered to pay Geyer $100, out of the verdict, if he would try the case; to which offer Geyer acceded, and went on and recovered the verdict.

The court below (McClure, P. J.) charged the jury, that the assignment to Geyer was valid, as against the plaintiff's attachment; to which the plaintiff excepted; and a verdict and judgment having been given for the garnishee, the plaintiff removed the cause to this court, and here assigned the same for error.

Burgwin, for the plaintiff in error.

Marshall and Brown, for the defendant in error.

The opinion of the court was delivered by

WOODWARD, J. Mr. Geyer had no lien on the fund attached, by virtue of the professional relation betwixt him and his client, but we think that, under the facts disclosed in his testimony, he had an equitable assignment. He wanted more than $100 for his services, but Wolf would agree to give no more, but that sum he agreed to give "out of the verdict," if Geyer would try his cause. Geyer did try the cause, and as between himself and Wolf, he acquired thus an equitable right to receive the $100; Wolf would be estopped from demanding it in face of his agreement.

Now, the Act of Assembly under which Patten attached this money in the hands of Wilson, says, that debts attached in execution shall be "subject, nevertheless, to all lawful claims thereupon." See § 22 of Act of 16th June 1836, relating to executions.

The effect of this provision is, what perhaps would have been decided without it, to place the attaching creditor, as regards the rights of third

parties, exactly in the shoes of the debtor. If Wolf could not claim this money, as against his counsel, Geyer, neither can Wolf's attaching creditor. All the equities which Geyer could set up against Wolf, are equally available to him as against Patten.

And this decides the cause. We make no account of the assignment to Large. It was void as against Wolf's creditors. It is not that, but the equitable assignment to Geyer, which defeats the plaintiff.

An observation of the learned counsel for plaintiff in error, is worthy of notice as applicable to both of these assignments. He argues that, as the claim was for unliquidated damages in an action sounding in tort, it was not capable of assignment before verdict. Strictly that is true. But it is true only in respect to the rights of third parties. As between Wolf and Geyer, an assignment or agreement to assign the whole or part of a future verdict, would be binding, and, being founded on sufficient consideration, would be enforced. Such agreements between counsel and client are common; more frequent, indeed, than they ought to be. They have attracted the animadversion of this court, more than once; but they bind the parties, and the attaching creditor of one of the parties succeeds to no higher rights than he possessed. The judgment is affirmed.

RICE v. STONE.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1861.

[Reported 1 Allen, 566.]

BILL IN EQUITY, filed March 26, 1860, alleging that the plaintiff is a creditor of the defendant Stone; that Stone has not any property which can be come at to be attached; that on the 24th of March, 1860, Stone recovered judgment against the other defendant, Noah Perrin, in the Superior Court in Boston, for two hundred dollars and costs, in an action of tort for injuries to the person, which sum he is about to collect for his own use, and does not intend to apply the same to the payment of the plaintiff's demand; and praying for an injunction to stay execution on the judgment, and for a decree that the demand of the plaintiff' shall be paid from the proceeds thereof.

The answer of Stone admitted the debt to the plaintiff; and averred that on the 16th of March, 1860, he obtained a verdict in his action against Perrin for two hundred dollars; and that on the following day, for a valuable consideration, he assigned his interest in the same and in the judgment to be rendered thereon, by an instrument in writing duly executed, a copy of which was annexed, to Paul Adams, who thereupon held and still holds the same.

Adams filed a petition in the case alleging the assignment to him, and claiming the amount of the verdict and judgment.

At a hearing in this court, at April term, 1860, before Bigelow, J., it was fully proved that the assignment was duly executed and delivered on the 17th of March to Adams, as security for a pre-existing debt then due from Stone to him, and of an amount exceeding the amount of the judgment, and was made in good faith and with no intention to hinder, delay, or defraud creditors. The question was raised whether the claim of Stone against Perrin having been ascertained by a verdict, was by law assignable after verdict and before judgment; and this question only was reserved for the determination of the whole court.

F. A. Brooks, for the plaintiff.

G. H. Preston, for the defendants.

CHAPMAN, J. No case is cited where it has been held that an assignment of a claim for damages for an injury to the person has been held good, when the assignment was made before judgment in an action for the tort. Such claims were not assignable at common law. On the contrary, a possibility, right of entry, thing in action, cause of suit or title for condition broken, could not be granted or assigned over at common law. Bac. Ab. Assignment, A. Com. Dig. Assignment, A. Shep. Touchstone, 240. But this ancient doctrine has been greatly relaxed. Commercial paper was first made assignable to meet the necessities of commerce and trade. Courts of equity also interfered to protect assignments of various choses in action, and after a while courts. of law recognized the validity of such assignments, and protected them by allowing the assignee to use the name of the assignor for enforcing the claim assigned. And at the present day claims for property and for torts done to property are generally to be regarded as assignable, especially in bankruptcy and insolvency. There may be some exceptions to this doctrine, but they need not be discussed here. But in respect to all claims for personal injuries, the questions put by Lord Abinger in Howard v. Crowther, 8 M. & W. 603, are applicable: "Has it ever been contended that the assignees of a bankrupt can recover for his wife's adultery, or for an assault? How can they represent his aggravated feelings?" And we may add the broader inquiry, has any court of law or equity ever sanctioned a claim by an assignee to compensation for wounded feelings, injured reputation, or bodily pain, suffered by an assignor? There were two principal reasons why the assignments above mentioned were held to be invalid at common law. One was to avoid maintenance. In early times maintenance was regarded as an evil principally because it would enable the rich and powerful to oppress the poor. This reason has in modern times lost much, but not the whole of its force. It would still be in the power of litigious persons, whether rich or poor, to harass and annoy others, if they were allowed to purchase claims for pain and suffering, and prosecute them in courts as assignees. And as there are no counterbalancing reasons in favor of such purchases, growing out of the convenience of business, there is no good ground for a change of the law in respect to such claims.

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Suplication диариант assignable

The other reason is, a principle of law, applicable to all assignments, that they are void, unless the assignor has either actually or potentially the thing which he attempts to assign. A man cannot grant or charge that which he has not. Jones v. Richardson, 10 Met. 481; Moody v. Wright, 13 Met. 17; Codman v. Freeman, 3 Cush. 309. In these cases the doctrine is applied to the mortgage of goods, which may be subsequently purchased by the mortgagor. But it applies equally to all sales of personal property and rights of property. In Lunn v. Thornton, 1 Man., G. & Scott, 379, it is applied to a sale of goods. This court has applied it to an assignment of wages where there is no contract for service. Mulhall v. Quinn, 1 Gray, 105.

The application of the doctrine of estoppel to conveyances of real estate with warranty, modifies the effect of the general doctrine in such cases, but can hardly be called an exception to it. Assignments of claims for torts done to property seem to be exceptions; yet these claims differ essentially from claims for personal torts. A claim for the tortious conversion or destruction of property, is based on a right to property which has a certain value. A claim for an injury to the property which is less than a conversion or destruction of it, is of the same character. So also the claim to recover threefold the amount taken for usurious interest. In Gray v. Bennett, 3 Met. 522, where it is decided that such a claim passes by assignment to the assignee of an insolvent debtor, it is distinguished from claims for injuries to the individual, such as assault and battery, false imprisonment, malicious prosecution, defamation, &c. The former is said to be a vested interest; and the latter are called mere personal rights.

It is there admitted that mere personal rights are not assignable. A claim to damages for a personal tort, before it is established by agreement or adjudication, has no value that can be so estimated as to form a proper consideration for a sale. Until it is thus established, it has no elements of property sufficient to make it the subject of a grant or assignment. The considerations which are urged to a jury in behalf of one whose reputation or domestic peace has been destroyed, whose feelings have been outraged, or who has suffered bodily pain and danger, are of a nature so strictly personal that an assignee cannot urge them with any force.

The character of this class of claims is not changed in this respect by a verdict before judgment. It must be made the subject of a definite judgment before it is assignable; a judgment upon which a suit may be brought. Stone v. Boston & Maine Railroad, 7 Gray, 539.

It is said in Langford v. Ellis, 14 East, 203, note, that the moment the verdict comes the damages are liquidated. This was an action of slander. But the principal case of Ex parte Charles, 14 East, 197, in which the other was cited, is regarded as overturning it. Buss v. Gilbert, 2 M. & S. 70. And these cases hold that neither an action for breach of promise of marriage nor for seduction passes to an assignee in bankruptcy before judgment. In our practice, where the points in

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