
    Hyslop v. Randall.
    A cause of action for a mere tort, in no way affecting property, cannot be so assigned that the assignee can sue in his own name.
    The defendant, as the complaint alleged, falsely and fraudulently represented to A, that B & C were worthy of credit: A, relying thereon, sold goods to B & C, on credit, and was damaged thereby, and assigned the cause of action to the plaintiff. On demurrer to the complaint, hel^d, that no action would lie in the plaintiff’s name.
    Special Term, April, 1855.
    This cause came before the court on a demurrer to the complaint. The latter alleged that the defendant, to induce A, a merchant, to sell goods on credit to B & C, also merchants, falsely and fraudulently represented them to be responsible, worthy of credit, and safe to be trusted; a sale and delivery of goods on credit to B & C, relying thereon; that. B & C were not responsible, or worthy of credit, or safe to be trusted; and their failure and inability to pay, whereby A sustained damage; and a sale and assignment to tbe plaintiff of tbe cause of action against tbe defendant, arising from these false and fraudulent representations.
    Tbe defendant demurred to tbe complaint, and assigned for cause, tbat it did not state facts sufficient to constitute a cause of action; tbat tbe pretended cause of action could not be assigned, so as to give tbe assignee a right to sue in bis own name.
    
      Wm. 0. Barrett for plaintiff.
    
      Chas. H. Sunt for defendant.
   Bosworth, J.

Section 111 of tbe Code requires every action to be prosecuted in tbe name of tbe real party in interest. But it also declares tbat such section “ shall not be deemed to authorize tbe 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 tbe law bad recognized as proper subjects of sale and assignment, to be prosecuted in tbe name of tbe assignee.

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

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

In Hoyt v. Thompson, (1 Seld. 347,) Paige, J., says, tbat “ all cboses in action, embracing demands which are considered as matters of property or estate, axe now assignable at law or in equity. Nothing is excluded but mere personal torts, which die with tbe 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, be distinctly states that he does not.understand any'of his brethren, except the chief Judge, as expressing'any opinion. (Id. 857.)

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 v. 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.

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 bond 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 v. 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 v. 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. (Shoemaker v. Kelley, 2 Dall. 213.)

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

If a person disposes of property witb intent to defraud bis creditors, tbe transfer is good as against bimself, and be cannot avoid it. It is difficult to understand on wbat principle bis volunteer assignee could maintain an action to rescind tbe sale and reclaim tbe property. Yet bis executor or administrator may impeach tbe sale and reclaim tbe property, or recover fits value. (Bate v. Graham, 1 Kernan, 240.)

It, therefore, may not be accurate to say, that all causes of action arising out of transactions connected witb personal property, wbicb would accrue to an executor on tbe death of bis testator, may be assigned by tbe latter, while living, witb such effect that tbe assignee can sue and recover in bis own name.

Tbe 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 witb tbe defendant, but witb others. It does not arise out'of contract. Tbe claim, for tbe goods sold, still continues, unless it is outlawed. But they were not sold to tbe defendant. He received no property from the plaintiff’s assignor, nor tbe proceeds of any property owned by him, nor did be physically injure any such property.

"Wbat be did was a pure naked tort, in no way affecting any specific property. .1 do not think tbe assignee of such a cause of action can prosecute in bis own name.

Tbe plaintiff has not, therefore, stated facts enough to show a cause of action existing in bis- favor against tbe defendant, on wbicb be can maintain an action.

Judgment must be given for tbe defendant 
      
       It is now settled that a claim to damage for the wrongful conversion of personal property, is a chose in action which is assignable. (McKee v. Judd, 2 Kern. 622.) But a right of action, for damages, caused by a false and fraudulent representation of the solvency of the vendee, or resulting from any tort which is purely personal, is not assignable. (Zabriskie v. Smith, 3 Kern. 322 and 332.) Vide also Purple v. Hudson River Railroad Company, supra, p. 14.
      
     