
    Aaron Usher versus James D’Wolfe and Others.
    Prizes captured by private armed vessels being required by law to be sold by the marshal, and the proceeds of the sales, after certain deductions, to be paid over by the marshal to the agents; it was holden, that the shares of seamen in such prizes were not assignable, so as to authorize an action in the name of the assignee against the agent.
    This action, which was assumpsit for money had and received, was brought to recover the sums due from the defendants, as agents and owners of the privateer Yankee, on account of the shares of seven of the seamen on board the said privateer, on her third cruise.
    It was admitted at the trial, which was had before the Chief Justice, at the last October term at Taunton, that the said cruise had been successful, and that there was money in the hands of the defendants, arising therefrom, sufficient to make each share of the value of $ 342. The plaintiff claimed title to certain portions of the shares of seven of the seamen, by virtue of an assignment and power of attorney from each of them ; which assignments and powers were proved to have been duly executed and delivered, according to their respective dates ; and notice thereof was given to the defendants, as appeared on the several instruments.
    The defendants objected, that the said shares were not assignable, and that, if they were, an action could not be maintained by the plaintiff in his own name. But this objection was overruled, and the question saved for the opinion of the whole Court.
    If the Court should be of opinion, that the said shares, or parts of shares, were legally assigned to the plaintiff, so that he could maintain this action for the proceeds in bis own name, judgment was to be rendered on the * verdict, which was found for him ; otherwise the verdict was to be set aside, and the plaintiff to become nonsuit.
    
      Holmes, for the plaintiff,
    contended, that the proceeds of these shares were not choses in action, and, so, liable to the legal objection that they are not assignable. They are not like wages, which are a light of action against the owner or the master of the ship. The property in the specific articles captured during the cruise vested in the captors, according to their respective interests or shares, from the time of the capture. The)r became tenants in common of every prize, and their interest was assignable, as any other chattel in possession. 
    
    
      Tillinghast and F. Baylies, for the defendants,
    contended, that these claims of the seamen were merely choses in action, and as sur b were not assignable, so as to give to the assignee an action in his own name. Indeed, at the time of the assignment of these shares, which was previous to the capture, there was nothing to assign but a bare possibility.
    By the act of Congress relating to prizes and prize goods,  aL prizes of vessels and other property, captured by private armed ships, are to be sold by the marshal of the district, and the proceeds of such sales, after certain deductions, are to be paid over to the owners and agents of the officers and crew, to be distributed according to law. The interest of the seamen, then, consists only of a right to demand a sum of money, as in any other case where money is in the hands of one and due from him to another. Such a demand can never be severed in such a manner as to subject the debtor, without his assent, to several actions by the assignees of parts of the debt. In the case from Wilson there might have been a special promise to the assignee.
    
      Holmes, in reply.
    The act of Congress has no effect to change the property in the prizes. The whole intention was, to secure the revenue arising on the prizes. The interest still remained in the captors or their assignees ; and * the right to an action for the proceeds of the sale vested in the assignees, in all cases where the assignment was prior to the sale. The equity being on the side of the verdict, the Court will not set it aside on an objection merely technical.
    
      
      
        Morrough vs. Comyns, 1 Wils 211.
    
    
      
      
        U. S.Laws, 12 Cong 2 Sess. c. 155.
    
   Parker, C. J.,

delivered the opinion of the Court. The question reserved in this case is, whether the action can be maintained in the name of Usher, the assignee of the shares, which he purchased of several of the crew of the privateer. The general principle, that chases in action, however favorably the assignment of them is considered in equity, and although protected in law whenever it can be done consistently with le^al principles, are yet not so assignable as that they can be sued in the name of the assignee, remains yet undisturbed. So that the only question is, whether the shares thus transferred were, or were not, choses in action.

By the case cited from 1 Wilson it may seem that they were viewed in another light by the Court of King’s Bench ; as the action was brought by the assignee in his own name, and no exception was taken on that ground. But whether this was owing to any construction given to the statute of 17 Geo. 2, which was cited in the case; or whether there had been not only notice, but the assent of the prize agent, and a promise to pay the assignee, does not appear. By the statute referred to, the property in the prize goods is considered as belonging to the captors ; and the only question in the case was, whether it vested before or after the condemnation.

In the present case notice was given of the assignment to the defendants, the prize agents ; but it is not stated that they promised to pay conformably to the assignment. Possibly, without any statute, a prize ship, or prize goods, might be considered as the property, in specie, of the captors ; and that each of the crew was an owner, as tenant in common with the rest and with the owners of the whole, and thus might assign his interest in the thing * itself; so that, when sold, the money would belong to the purchaser, in proportion to his interest.

But, by the statute of the United States, which regulates the mode of proceeding with captured properly, as well as authorizes the capture, the prize goods must be brought jn, libelled, and condemned. They must be sold by the marshal, who will pay over the proceeds, deducting duties and expenses, to the prize agents ; and these last are to distribute them among all concerned, according to any agreement which may subsist. So that there is no right in, or control over, the property with the captors, until it has been disposed of according to this statute. The crew, therefore, have nothing but the right of demanding the money when it has been received ; and this right is a mere chose in action, not assignable at common law. And, if it were otherwise, prize agents might be subject to a multitude of actions for the proceeds of one share ; the practice being to assign parts of shares. They might also lose all opportunity of setting off such demands as they might fairly have against the crew. The verdict in this case must be set aside, and the plaintiff be called.

Plaintiff nor.suit.  