25 How. Pr. 285 | Superior Court of Buffalo | 1858
The action is for carelessly and negligently setting fire to and burning up grass and fences, and hay stacked upon a certain farm owned and possessed by one Robert Skilling. Skilling executed an assignment of his right of action to the plaintiff. The defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The point relied upon is, that the right of action stated in the complaint is not assignable. The true test, by which to determine what of a personal nature is capable of being transferred by assignment, is established by Denio, J., in Zabriskie agt. Smith, (3 Kern. R., 322.) He says: “ The power to assign, and to transmit to personal representatives, are convertible propositions.” But, with all due respect, I think the learned judge arrived, in the case cited under the test he applied, at an erroneous conclusion by holding that nothing passed by the assignment from Gray to Zabriskie. Gray & Co. parted with their goods by sale and delivery to one Smith, who was insolvent, upon the strength of the false and deceitful representations of
“ § 1. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executors or administrators against such wrong-doer; and after his death against his executors or administrators, in the same manned and with the like effect in all respects as actions founded on contract.”
“ § 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault’ and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff or to the person of ’the testator or intestate of any executor or administrator-.” (2 R. S. 447.)
The words “ rights and interests” in the first section not only in their largest and most extensive sense, but also in their common acceptation, include all the matters enumerated in the second section. That such was understood to be their signification, is evident from the necessity of introducing the second section. It seems to me that the two sections read together manifest an intent on the part of the legislature that the right to redress all unredressed actionable wrongs not enumerated in section two, should not die with the injured person or the wrong-doer, but should sur
- “ § 4. Executors and administrators shall have action oí trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods of their testator or intestate in his lifetime. They may also .maintain actions for trespass committed on the real estate of the deceased in his lifetime.” (2 R. S., 114.)
. This is a remedial statute, and is to be liberally construed, (Snider agt. Croy, 2 John. R., 227 ;) and the term trespass used in it is, in respect to the subject matter, to be construed in its most extensive signification, (Toller’s Law of Executors, 158 ; 1 Chitty’s Plead., 57 ;) and in that signification includes every description of wrong to the goods or real estate of the testator or intestate, without regard to the form of the remedy.- (1 Chittfs Plead., 162.) Trespass (transgressio) is any transgression of the law less than treason, felony, or misprison of either ; but it is most constantly used for that wrong or damage which is done by one private man to another, whether it relates to his person or his property; in which signification it is of two sorts—trespass general, otherwise called vi et armis ; and trespass special, er upon the case. (Law Dictionary, title, Trespass; 3 Blacks. Com., 208.)
The right of action stated in the complaint is assignable, and the plaintiff is entitled to judgment.