12 Colo. App. 214 | Colo. Ct. App. | 1898
April 20,1892, in the district court of Boulder county, one Friend E. Wright recovered judgment against the sheriff of the county in an action instituted under the provisions of section 1868, General Statutes, for three times the value of certain exempt property alleged to have heen taken by said sheriff under writ of attachment against said Wright. On August 4, following, Wright assigned in writing the judgment and the claim upon which it was rendered to Joseph M. Mumford, appellant in this cause. Upon appeal to this court by the sheriff, the judgment was at the September term of the court,
The judgment which was assigned by Wright to Mumford having been reversed, set aside, and held for naught, it is unquestionably true that Mumford could have no' right or claim to the judgment subsequently rendered upon the second trial, unless the assignment was sufficient to vest in him the ownership of the claim or cause of action upon which the judgment was based. This is the controlling question in this case, and is one which presents considerable difficulty in its determination. It has never been directly decided in this state, and in fact, there are but few adjudications which can be of assistance to us.
Under the rigorous harshness of the common law a judgment debtor was allowed no property exemptions, — the full pound of flesh was exacted. This rule has long since been
Torts may be divided into two general classes, the first, designated as property torts, embracing all injuries and damages to property, real or personal; the second, known as personal torts, including all injuries to the person, whether to reputation, feelings, or to the body. A tort which is not an injury to property is a personal tort. Under the established rules, independent of statute, an action upon a personal tort did not survive to an executor or administrator, and hence under the test rule was not assignable. That the claim of Friend E. Wright against the sheriff for the seizure of his exempt property was for a personal tort cannot be denied. There was no injury or damage to his property for which he was seeking compensation. If he had seen fit, he could have instituted an action in replevin to recover his property, with the ordinary damages for its unlawful taking. The right to sue for and recover the triple damages was not based upon any injury to Ids property, but rather upon the injury to him by the invasion of a right which the statute says should be inviolable. He might also, if he had desired, simply have instituted a suit for single damages, and waived any right or claim which he had to triple damages. Does the statute, however, change the ordinary rule in this respect, and under it, even though the action in this case was for a personal tort, would it survive to the personal representatives of the de
Even without section 1867, it would be unreasonable to hold that this cause of action survived to executors and administrators. The exemption being because the debtor is the head of a family, its primary and principal object and purpose is to benefit and protect, or as the law writers express it, conserve, the family. Now, if the action should survive to the executor or administrator of a head of a family, the proceeds would be applied to the payment of his debts, the very object which the statute is intended to prevent. The family of the poor debtor would thus be wholly deprived of the benefits which it was the beneficent and sole purpose of the law to extend to them.
The complaint is also attacked as being insufficient upon the ground that it does not allege that the defendant was indebted to the plaintiff, nor that defendant promised to pay any sum to plaintiff, nor any facts showing a privity between the plaintiff and defendant. We think the complaint is sufficient. When a person receives the money of another, and applies it to his own use, the law implies a promise to repay it, and this implied promise need not be alleged. Durnond v. Carpenter, 3 Johns. 183; Byxbie v. Wood, 24 N. Y. 607. If a promise to pay is implied, this coupled with the allegation contained in the complaint that the defendant has not paid the same, nor any part thereof, and that the same is now due and unpaid, is a sufficient allegation of an indebtedness. It is also held that where one receives the money of another, and has not the right conscientiously to retain it, as was the question sought to be determined by this suit, a privity between the true owner and the receiver will be implied, as well as a promise to repay it. Caussidiere v. Beers, 2 Keys, 198; Kreutz v. Livingstone, 15 Cal. 344.
Appellant also urges that a suit could not be maintained
And we see no reason why the fact that the party claimed to have received it rightfully and under a claim of its ownership, should make any difference in the rule. This form of action is provided for cases where money has been received by one person, which rightly and justly belongs to another.
The judgment was correct and will be affirmed.
Affirmed.