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Hyslop agt. Randall.

authorize the assignment of a thing in action not arising out of contract.

This section was designed, not only to authorize, but to require, all causes of action which the law had recognized as proper subjects of sale and assignment, to be prosecuted in the name of the assignee.

It of course includes all such causes of action as arise upon contracts not negotiable. Formerly they must have been prosecuted in the name of the assignor. As to all such cases, the courts would protect the assignee against any contracts affecting them, made between the assignor and his debtor, after the latter had notice of the assignment.

To what extent causes of action, not arising out of contract merely, but out of actual injuries to property, may be assigned, so that the assignee may sue upon them in his own name, has been a vexed question since the Code took effect.

In Hoyt agt. Thompson; (1 Seld. 317,) PAIGE, J., says that “all choses in action, embracing demands which are considered as matters of property or estate, are now assignable at law or in equity. Nothing is excluded but mere personal torts, which die with the party. A claim, therefore, for property fraudulently taken or received, or wrongfully withheld, and even for an injury to either real or personal property, may be assigned.” But as to this question, as well as to some others discussed by him, he distinctly states that he does not understand any of his brethren, except the chief judge, as expressing any opinion. (Id. 357.)

This opinion, therefore, however great the respect to which it is entitled, is but the opinion of a single judge, and was obiter dictum.

In Hall agt. Robinson, (2 Coms. 293,) the decision was put on the ground that the property had not been converted by the defendant, when the plaintiff's vendor sold it to him. That a sale of it to the plaintiff while in the actual possession of the defendant, gave to the former a good title, and that, upon a demand of it, made after his purchase, and a refusal by the defendant to deliver it, an action could be maintained.

Hyslop agt. Randall.

With reference to such a case, STORY, J., says, “I know of no principle of law that establishes that a sale of personal goods is invalid because they are not in the possession of the rightful owner, but are withheld by a wrongdoer. The sale is not, under such circumstances, the sale of a right in action, but is the sale of the thing itself, and good to pass the title against every person, not holding the same under a bona fide title, for a valuable consideration without notice; and a fortiori against a wrongdoer.” (2 Sum. R. 206-211, The brig Sarah Ann.) On this point see Gardner agt. Adams, (12 Wend. 297.)

Mr. Justice PAIGE does not rest his opinion upon the idea that the Code has enlarged the class of assignable actions, but bases it upon the rules of law and equity as they existed before the Code was passed. All the assignments in that case were made before the Code was enacted. The only authority cited by him, is The People agt. Tioga Common Pleas, (19 Wend. 73.)

In the latter case, the learned judge who delivered the opinion said, "I 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 for any mere tort; while there are several cases in Pennsylvania which deny that such a right will pass.(Id. pp. 76, 77.) An action on a penal statute, and an action on the case for a deceit, are instanced as actions which do not survive. (Shoemalcer agt. Kelley, 2 Dall. 213.)

But an executor or administrator may maintain actions on account of transactions of the testator or intestate in his lifetime, which the latter could not do if living.

If a person disposes of property with intent to defraud his creditors, the transfer is good as against himself, and he cannot avoid it. It is difficult to understand on what principle his volunteer assignee could maintain an action to rescind the sale and reclaim the property. Yet his executor or administrator may impeach the sale and reclaim the property, or recover its value. (Bate agt. Graham, 1 Kernan, 240.)

It, therefore, may not be accurate to say that all causes of

Robbins agt, Alexander.

action arising out of transactions connected with personal property, which would accrue to an executor on the death of his testator, may be assigned by the latter, while living, with such effect that the assignee can sue and recover in his own name.

The cause of action stated in this complaint is one of mere tort, not injuriously affecting any property, personal or real. It may have induced a contract, not with the defendant, but with others. It does not arise out of contract. The claim, for the goods sold, still continues, unless it is outlawed. But they were not sold to the defendant. He received no property from the plaintiff's assignor, nor the proceeds of any property owned by him, nor did he physically injure any such property.

What he did was a pure naked tort, in no way affecting any specific property. I do not think the assignee of such a cause of action can prosecute in his own name.

The plaintiff has not, therefore, stated facts enough to show a cause of action existing in his favor against the defendant, on which he can maintain an action.

Judgment must be given for the defendant.


ROYALL E. Robbins and HENRY A. ROBBINS agt. Isaac


A deed of compromise and settlement executed, under seal, by judgment and

other creditors, with a covenant not to sue or molest the debtor or his property, he paying a certain per cent. on the amount of his debts,-held, not to affect the amount of costs in a judgment signed off by the plaintiffs as such judgment creditors, where there was a previous agreement that the plaintiffs' attorney should have the costs in the suit as a recompense for his services,

of which the defendant, the debtor, had notice. A refusal by the plaintiffs, when compromising, to settle as to such costs, held,

to be a severance of the costs from the rest of the debt recovered by the judgment, so that the plaintiffs' attorney owned the costs, and the plaintiffs the rest of the debt only.

Robbins agt. Alexander.

New-York Special Term, March, 1855.

This was a motion made in two causes by the defendant, Isaac Alexander, to set aside two executions issued upon two judgments in favor of the plaintiffs against said defendant.

It appeared that in October, 1851, the plaintiffs recovered two judgments, in the supreme court, against the defendant: the first for $380.66, the second for $379.12. The defendant stated that the plaintiffs entered into and executed an agreement with him—[setting out a copy)-settling and compromising the said judgments, and the claims and the moneys due thereon; that he then and there paid to the plaintiffs the amount required by said agreement, and they accepted the same as full satisfaction.

That in December, 1854, the plaintiffs, by their attorney, Daniel Bowley, issued execution on each of said judgments, to the sheriff of the county of New-York, directing said sheriff to levy upon the first judgment $153.78, and upon the second the sum of $143.89. That under said executions the sheriff had levied upon the property and stock in trade of defendant, and threatened, and was about to remove it for sale.

The substantial part of the deed of compromise run as follows:

“Now know ye, that we, the said creditors of the said Isaac Alexander, in consideration of the premises and of one dollar, and other considerations, to each of us in hand paid, do, for ourselves respectively and severally, and for our respective and several executors, administrators, and assigns, covenant, promise, compound, and agree to and with the said Isaac Alexander, his executors, and administrators, that we, the said several creditors, shall and will accept and receive, and hereby do accept and receive, from the said Isaac Alexander, for each and every dollar that the said Isaac Alexander doth owe and is indebted unto us respectively, the sum of ten cents, in full discharge and satisfaction of such several debts and claims.

“And we, the said several creditors, do severally and respectively, for ourselves, our several and respective executors,

Robbins agt. Alexander.

administrators, and assigns, in consideration of the premises, further grant, promise, and agree to and with Isaac Alexander, that neither we, the said several creditors, nor any of us, nor the executors, administrators, or assigns of us, or any or either of us, shall or will, at any time hereafter, sue, arrest, molest, trouble, imprison, or attach the said Isaac Alexander, his executors or administrators, or his or their goods, chattels, or property, for any debt or other existing claim or demand now due, or owing to us, or any of us, his creditors as aforesaid. In wit

ness, &c.

“ March 3, 1854."

[Signed and sealed.]

It appeared, on the part of the plaintiffs in the execution, by the affidavit of their attorney, Daniel Bowley, and of the plaintiff Henry A. Robbins, corroborated by the plaintiff Royall E. Robbins, that the attorney agreed with the plaintiffs to prosecute the actions for the costs thereof as against the defendant. And the plaintiffs agreed with the attorney, upon the commencement of the actions, that the costs should belong to the attorney; and that the portions of the judgments therein for costs did then belong to the attorney pursuant to said agreement. That the defendant was distinctly informed that such costs belonged to the attorney, by the attorney himself, about six months previous to the execution of the deed of compromise. And the said Henry A. Robbins, at the time of the compromise, told the defendant that the plaintiffs could not settle with him as to said costs; that they did not know the amount of Mr. Bowley's claim for costs; that the plaintiffs would receive a hundred dollars as a satisfaction of the original debt; that he told defendant that he would rather not sign the release without seeing Mr. Bowley, (who was then absent;) that defendant said, “Leave the amount blank,” which was accordingly done.

The defendant denied, in the most positive manner, that Bowley, at any time, ever informed him, or gave him to understand, or intimated to him, that any part of said judgments, either for costs or otherwise, belonged to him, said Bowley, or that he had any personal interest therein to any amount what

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