19 Wend. 73 | N.Y. Sup. Ct. | 1837
By the Court,
The questions are, 1. Whether, admitting this claim for the wrong done to Thomas to be assignable, the sealed instrument was operative as an assignment ; and 2. If so, whether such a claim be assignable.
Looking at the facts recited in the power of attorney and the provisions to save Thomas harmless, no one can doubt that the object and intent of the power of attorney was to assign all Thomas’ interest to Stanton, the relator, to whom in conscience it belonged. He was the real sufferer, and the plaintiff did a just and generous act in giving such a power. No two persons can understand it in different ways. It says, “ because the defendant has probably brought disgrace upon the relator, with probable expense, I empower him to prosecute in my name, at his own expense. ■ Witness my hand and seal.” This is but another mode of saying, under seal, “ You may receive to your own use the avails of the suit as an indemnity for your moral injury, &c. The words, “ I do hereby authorize him to prosecute in my name,” when viewed in connection with the reason and motives, and at whose expense, are equivalent to a covenant that the assignee might prosecute availably to himself. It is like an irrevocable power of attorney, which, in the case of an ordinary chose in action operates as an assignment, and a power of attorney for a consideration is irrevocable. Per Lord Eldon, in Bromley v. Holland, 7 Ves. 28. Per Kent, J. in Bergen v. Bennett, 1 Caines’ Cas. in Err. 15, 16, 17. The costs, time and other charges of such a prosecution were, it seems, actually incurred by Stanton. They are many times very great in this kind of action ; at any rate, they make a valuable in addition to the moral consideration :
I regret to think, however, that the relator has mistaken his remedy, in moving to vacate the satisfaction entered upon the record Gardner v. Adams, 12 Wendell, 297, 299, is cited and relied upon by the counsel for the defendants ; but the question is not whether this demand be transferable so as to pass the legal right. Matters in action are never so transferable, unless they arise on certain commercial instruments. 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 no where 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 to 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 claim is in nature
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 1 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 they deny that such a right will pass. In Somner v. Wilt, 4 Serg. & Rawle, 19, 28, the claim was for an^ábuse 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 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.
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 torched 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 executor. 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 contrary, 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 authori
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 properly, 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 interfer
Motion denied, but without costs.