§ 146. Since the title of an executor or administrator is regarded by our law as a title by assignment, it was very natural that the courts should consider these statutes as furnishing the criterion by which to determine what things in action are assignable and what are not assignable between living parties. In this manner the statutes referred to have indirectly produced the result as before mentioned. Following the analogies furnished by them, the rule is generally established that whatever things in action will survive and pass to the personal representatives of a decedent as assets of or liabilities against an estate, are assignable by the direct act of parties, while those things in action which will not thus survive and pass to the personal representatives of a decedent are not assignable. This general principle will be developed, and the authorities sustaining it will be quoted, in the succeeding paragraphs. In some States there may be statutes expressly dealing with the subject of assignment inter vivos. Thus, the peculiar legislation of Kentucky has already been noticed, which in terms authorizes the assignment of negotiable paper, bonds, and all contracts for money or property; and the judicial construction of the enactment has also been described, which holds that all assignments made in accordance with the provision are legal, so that the assignee may sue alone, but that all others are equitable, so that while the assignee must bring the action because he is the real party in interest, the assignor must also be joined as a party either plaintiff or defendant. I shall now proceed to inquire how far the principle thus announced is sustained by judicial authority, and shall illustrate its operation by an examination of the particular cases in which a thing in action has been held assignable or not assignable. § 147. First What things in action are assignable. It is fully established, by a complete unanimity in the decisions, that causes of action which survive and pass to the personal representatives of a decedent as assets, or continue as liabilities against such representatives, are in general assignable, while those causes of action which do not thus survive are not assignable. By the common law, causes of action arising out of contract, unless the contract, being still executory, was purely personal to the decedent, or unless the injury resulting from its breach consisted entirely of personal suffering, bodily or mental, of the decedent, did thus survive; while causes of action arising out of torts did not in general survive. The statutes in most if not all the States have changed this ancient rule, and have greatly enlarged the class of things in action which survive. It is now the general American doctrine that all causes of action arising from torts to property, real or personal, injuries to the estate, by which its value is diminished, do survive and go to the executor or administrator as assets in his hands. As a consequence, such things in action, although based upon a tort, are assignable. The criterion, Wood, 24 N. Y. "But, conceding elements that go action, it will be The following resume of authorities will show the universality of this rule, and the reasons upon which it is based. Hoyt v. Thompson, 5 N. Y. 320, 347, per Selden J.: "All choses in action, embracing demands which are considered as matters of property or estate, are now assignable either at law or in equity. Nothing is excluded except mere personal torts which die with the party. A claim, therefore, for property fraudulently or tortiously taken or received, or wrongfully withheld, and even for an injury to real or personal property, may be assigned;" citing People v. Tioga County, 19 Wend. 73; Haight v. Hayt, 19 N. Y. 464, 467, per Grover J. "The rule of the common law was, that actions for torts die with the person, and could not be maintained by the personal representatives of the injured party, or against those of the wrongdoer. The statute has changed the law action is brought for damages to the so far as property or relative rights are affected by the wrongful act. survive." Byxbie v. 607, 611, per Gould J. that a tort is one of the to make up this cause of found to be assignable. It will be seen to be of that class of torts the right of action for which would survive to the personal representatives of the claimant, and the power to assign and to transmit to personal representatives are convertible propositions." Graves v. Spier, 58 Barb. 349, 386, per Johnson J. "All the cases agree that it [the cause of action] is assignable, if the cause of action survives and may be maintained by or against the personal representatives of the parties to the transaction. We have seen that a cause of The R. S. action like the one before us does so sur vive." Butler v. N. Y. & Erie R. R., 22 Barb. 110, 112, per Mason J. "On the other hand, when the injury affects the estate rather than the person, when the estate, and not for injury to the person, personal feelings, or character, the right of N. Y. (v. 2, p. 448, § 1) provide that, of action can be bought and sold. Such for wrongs done to the property rights, or interests of another, for which an action ruptcy, or insolvency of the party injured might be maintained against the wrong passes to the executor or assignee as a doer, such action may be brought by the part of his assets, because it affects his person injured, or, after his death, by his estate, and not his personal rights. . . . executors or administrators, in the same a right of action upon the death, bank manner and with like effect in all respects person, such as slander, assault and battion 2 provides that the preceding section the like, are not assignable; but torts for as actions founded upon contracts. Sec- tery, false imprisonment, seduction, and shall not extend to actions for slander or taking and converting personal property, übel, or to actions for assault and battery, or for injury to personal property, and it the case for personal injuries to the plain- for a tort as would survive to the personal or false imprisonment, nor to actions on seems, generally, all such rights of action tiff, or to the person of the testator or in- representative of the party, may be astestate of any executor or administrator. signed so as to pass an interest to the The exceptions contained in § 2 manifest assignee, which he can assert in his own the intention of the legislature, that all Mere personal torts which die with the other actions founded upon tort should he formerly might do in the name of the name in a civil action under the code, as therefore, by which to judge of the assignability of things in action, is to ascertain whether the demand survives upon the decease of the party, or dies with him. If all things in action are separated into two classes by this line of division, those embraced in the first class are assignable, and those which fall into the second are not. In the first class are all claims arising from the breach of contracts, with certain well defined exceptions, and those arising from torts directly to real or personal property, and frauds, deceits, and other wrongs by which an estate, real or personal, is injured, diminished, or damaged. In the second class assignor at law." Zabriskie v. Smith, 13 N. Y. 322, 333, per Denio J. The maxim of the common law is, 'actio personalis moritur cum persona.' This principle was not originally applied to causes of action growing out of the breach of a contract. They were parcel of the personal estate in reference to which the administrator or executor represents the person of the deceased, and is in law his assignee. But, as to this class of rights of action, late cases have somewhat qualified the rule and it is now well settled that an executor or administrator cannot maintain an action upon an express or implied promise to the deceased, when the damage consists entirely of the personal suf ferings of the deceased, whether mental or corporeal. Actions for the breach of a promise of marriage, for unskilfulness of medical practitioners contrary to their implied undertaking, the imprisonment of a party on account of the neglect of his attorney to perform his professional engagements, fall under this head, being considered as virtually actions for injuries to the person. (Chamberlain v. Williamson, 2 M. & S. 408). . . . But all actions ex delicto were governed by the maxim," until statutes temp. Edw. III. allowed executors and administrators to bring trespass de bonis asportatis when the taking was in the lifetime of the deceased. "These statutes have been greatly extended by an equitable construction (Williams on Executors, Vol. 1, p. 670); but I do not find that an action on the case for a deceit has ever been considered as within the purview of these statutes. ... If it be true that the executors and administrators are the testator's assignees, ... it is fair to assume that they take whatever of a personal nature the deceased had which was capable of assignment; and thus the power to assign and to transmit to personal representatives are convertible propositions. . . . Any interest to which the personal representatives of a decedent would not succeed is not the subject of an assignment inter vivos." Although the principle laid down by the learned judge in this opinion was correct, yet it is evident that he entirely overlooked the New York statute, which defines the causes of action which survive. Judge Denio's oversight of this statute is pointed out in subsequent cases in the same court. Weire v. Davenport, 11 Iowa, 49, 52, per Wright J. "It is contended that the liability of the city was for a tort, and that this could not be assigned. This was true at the common law, so far at least that the right of action for such an injury could not be transferred. What change the code has made in this respect we need not stop to inquire, for the reason that we entertain no doubt that such a liability may be sold and transferred. It may be sold just as a horse or any other property may be, and the title passes as completely. . . . The code has not narrowed the assignability of claims. Whatever could be assigned before may be still, and some claims are made assignable which before were not.” Tyson v. McGuineas, 25 Wisc. 656, per Cole J. It would seem generally that all such rights of action for torts as would survive to the personal representatives may be assigned so as to pass an interest to the assignee which he can now assert in his own name." are all torts to the person or character when the injury and damage are confined to the body or the feelings, and those contracts, generally, though not always, implied, the breach of which produces only direct injury and damage, bodily or mental, to the person; and contracts, so long as they are executory, which stipulate solely for the special personal services, knowledge, and skill of a contracting party. Among the instances of the first of these two classes are the breach of a promise of marriage, injuries done by the want of skill of a medical practitioner contrary to his implied undertaking, and the like. In most of these cases, and probably all except the promise of marriage, the wrong-doer might, under the old practice, have been sued in an action on the case for a neglect of his duty, as well as in assumpsit for a breach of his implied undertaking; and it is thus plain that this exception to the general doctrine under consideration is more apparent than real, for it rests entirely upon the fiction of regarding a certain transaction as a contract, when in fact no contract of the sort supposed was made. § 148. As a result of these general principles it is fully established that a right of action to recover damages for the wrongful taking and carrying away, or the wrongful conversion of personal property, is assignable.2 In the same manner a demand for compensation arising from injuries to land, whether done directly and with force, or the result of negligence, may be assigned; 3 also demands arising from injuries to personal property, either in the form of trespasses with violence or of wrongs done through negligence and want of skill, as, for example, a claim against a railroad company for carelessly running over and killing cattle by means of its trains. An illustration of the rights of action for - 1 Zabriskie v. Smith, 13 N. Y. 233, per Denio J.; Chamberlain v. Williamson, 2 M. & S. 408; Meech v. Stoner, 19 N. Y. 23, per Comstock J.; Wade v. Kalbfleisch, 58 N. Y. 282. 2 McKee v. Judd, 12 N. Y. 622; Sherman v. Elder, 24 N. Y. 381; Hawk r. Thorne, 54 Barb. 164; Richtmeyer v. Remsen, 38 N. Y. 206; Grocers Nat. Bank v. Clark, 48 Barb. 26 (a claim for the fraudulent misapplication of funds by an officer of a bank); Smith v. Kennett, 18 Mo. 154; Lazard v. Wheeler, 22 Cal. 139; Tyson v. McGuineas, 25 Wisc. 656. Disney, 58; Weire v. Davenport, 11 Iowa, 49; More v. Massini, 32 Cal. 590; Haight v. Green, 19 Cal. 113. In these cases the decision was put expressly upon the ground that claims of the kind in question having been, by statutes of the respective States, made to survive, they were therefore assignable. A claim of damages for waste against a tenant. Rutherford v. Aiken, 3 N. Y. Sup. Ct. 60. 4 Butler v. N. Y. & Erie R. R., 22 Barb. 110. See McArthur v. Green Bay, &c. Canal Co., 34 Wisc. 139, 152, 153, Hall v. Cincinnati, &c. R. R., 1 per Lyon, J. negligent injuries to land which are assignable, is that resulting from the setting on fire and burning up of grass, hay, and fences by coals carelessly dropped from passing engines.1 Falling under the same principle is the case of a claim against a common carrier for a breach of his contract or duty in failing to deliver the goods at all, or in injuring them while on the transit. This is a very plain case, for at the common law the injured party might sue in assumpsit upon the carrier's promise express or implied, or in case upon his general duty.2 The same is true of a demand in favor of a guest against an innkeeper, and, in fact, in favor of any bailor against his bailee for a breach of the latter's duty whereby the property bailed is lost, destroyed, or injured.3 ة § 149. The following are additional instances of assignable rights of action arising from injuries done to property through the negligence or unskilfulness of the wrong-doer; against a person who had contracted with the State to keep a navigable canal in repair, for an injury done to a boat by means of an obstruction carelessly suffered to remain in the water-way; against a sheriff for neglecting to arrest a defendant upon a body execution issued to him; against a bank for neglecting to make a proper demand of payment of a note left with it for collection, and to take other steps necessary to charge the indorsers, whereby through the insolvency of the maker the debt was lost. Even the claim, under the statute, of a next of kin, for damages caused by the wrongful killing a person, is assignable; the statute makes the demand assets of the estate so far as the distributees are concerned, although not generally, and it is thus, by virtue of the statute, a property and not a mere personal right.7 § 150. The same doctrine is applied to claims growing out of fraud and false representations, if the deceit is practised in some transaction relating to the buying, selling, or other dealing with 1 Fried v. N. Y. Cent. R. R., 25 How. demand was held assignable because the Pr. R. 285. wrong was done to the property rights or interests of the assignor, and the cause of action would survive. It was such a wrong, because taking the body of the debtor in execution is a satisfaction of the judgment. 2 Waldron v. Willard, 17 N. Y. 466, in which the original owner simply assigned "all his interest in the goods." Merril. v. Grinnell, 30 N. Y. 594. 3 Stanton v. Leland, 4 E. D. Smith, 88; Merrick v. Brainard, 38 Barb. 574. 4 Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648. 5 Dininny v. Fay, 38 Barb. 18. The 6 Ayrault v. Pacific Bank, 6 Robt. 337. 7 Quin v. Moore, 15 N. Y. 432. |