
    [Philadelphia,
    March 24, 1823.]
    NORTH, Sheriff, and others against TURNER and others.
    IN ERROR.
    A plaintiff on the record, in an action of trespass de bonis asportatis, may assign his interest, and become a witness. But, it seems, that a plaintiff in slander, assault and battery, or criminal conversation could not.
    An assent to an assignment to absent persons will be presumed, where it is made for a valuable consideration, and is beneficial to them.
    A plaintiff on record, after assignment of his interest, may be a witness, on paying sufficient to cover all the costs that have accrued ór may accrue, without an express stipulation, not to claim any return.
    An assignment of personal property, 'by .which the right of property passes, draws after it a constructive possession, on which the assignee may maintain trespass.-
    Error to the District Court of the city and county of Philadelphia. John. Turner, Jr., Samuel Humphreys, and JBernard Fitzsimmons,' brought this action of trespass vi et armis, against Caleb North, Thomas Elliot, Henry Engles, and John Graham, for taking and carrying away 300 barrels of tar, 200 barrels of rosin, and 50 barrels of turpentine, the property of the plaintiffs: to which the defendants pleaded not guilty. A verdict and judgment were rendered in the court below, for the plaintiffs Turner, and others.
    The property set out in the declaration, had been levied on by two.of the defendants, Elliot and Engles, who were Sheriff’s officers, on the 21st of March, 1820, under a fieri facias, issued from the Supreme Court, at the suit of John Graham against George W. Fowle, which came to the Sheriff’s hands, on the same day; and the property was afterwards sold under the fieri facias.
    
    In order to prove that the property was not in Fowle, but in the plaintiffs, the plaintiffs offered John Turner, Jr. one of the plaintiffs, as a witness, having first paid the costs of the suit, by Turner’s check for25 dollars; and having produced an assignment, dated 18th October, 1821, from the plaintiffs tp Richard Goodwin and Jisa Jones, of their claim against the defendants jointly, or personally, for damages sustained by, or in consequence of their acts, or any of their acts, and also of all such sums of money as might result from the trial of the suit, or on a compromise of the same, or in any other manner; Richard Goodwin to receive 9-13ths, and JLsa Jones the residue. No evidence was given to show, that Goodwin and Jones knew of, or had ever accepted the assignment. It appeared by Turner’s evidence, that Goodwin and Jones were the consignors to Turner & Co. of the tar and rosin; and an entry on the record showed, that the action, had been marked on the 18th October, 1821, to the use of said Goodwin and Jones. The defendants objected to Turner’s competency as a witness, but the court overruled the objection, and sealed a bill of exceptions.
    In relation to the question who owned the property at the time of the levy, there was evidence to show, that Fowle, on the morning of the 21st of March, 1820, gave to Turner a paper, in these words:
    
      Philadelphia, March 20th, 1820. Messrs. Jno. Turner & Go,
    
    Bought of George M. Fowle & Co.
    
    
      ■ The following, now on board the ship Howards 300 Barrels Suffolk Tar, at @3, - $900
    200 Do. Rosin, 2, 400
    $1,300
    50 Barrels Turpentine, at $2 25, - - - - 112
    $1,412
    Réceived payment this day,
    
      George M. Fowle & Co.
    
    Witness Philip Meser.
    
    This paper, Turner swore, had been prepared the day of its date. The plaintiffs held Fowle’s notes, and Fowle being unable to take them up, resold to them, the tar and rosin, which he had bought from them, and added the turpentine. ' The goods were sold on board the Howard, which had been freighted by Fowle from Mr. Hemphill, and no possession was ever had of the goods by the plaintiffs under the above papers. There was contradictory evidence as to the exact time, at which this paper was delivered on the 31st March. It was, however, early in the morning. There was doubt also of the moment when the levy was actually made. The officers were in possession early in the day. The court below charged the jury as follows:
    There is but one question in this cause. Was levy under the the execution at the suit of John Graham upon these goods legal ? The property once belonged to Turner & Co., and was by that house sold to George M. Fowle & Co., who gave their notes for the payment of the price of the property. Becoming embarrassed, Fowle & Co. proposed to transfer the property purchased from Turner & Co. to them, and to add to it as an indemnity for loss and expenses, the 50 barrels of turpentine, purchased from Snowden and Wagner. This proposal was, on the part of Fowle & Co., honourable and praise worthy. It was the most correct course which, under the circumstances of the case,, would be adopted. The bargain was concluded on the 20th of March, and the bill of sale was then made out: but as Fowle’s notes were still in the possession of Turner & Co., it was necessary that he should use the precaution, not to give the bill of sale, until the notes were given up, as they were- in bank, and the bank was closed, this could not be done, nor the bill of sale delivered until the next morning.
    The question is, which had the priority in point of time, the completion of the bill of sale, or the delivery of the execution to the Sheriff? (The court then stated the evidence and proceeded). If you think the bill of sale was completed, and delivered, before the execution was delivered at the Sheriff’s pffi.ee, that settles the case, so far for the plaintiffs.
    It has been said by the counsel for the defendants, that the bill of sale was inoperative, because possession of the goods was not delivered before the levy was made under the execution. The rule, that a bill of sale must be accompanied with delivery of possession, is liable to many exceptions. For instance, the case of a ship at sea, where the delivery of the grand bill of sale is sufficient. So too, the case cited by the plaintiffs counsel, from Massachusetts Reports, of logs in the canal.
    The law will not require impossibilities. We think, that in the present case, there was a sufficient delivery of possession. The captain of the Howard was the agent of Fowle & Co., and held the goods as their agent, and upon the execution of the bill of sale, he became the agent of Turner & Co., and was in possession for them. And this is corroborated by the conversation in Dock Street, between John Turner, Jr. and Mr. Hemphill. Hemphill had a .lien on the goods for his freight, and to satisfy him touching the freight, Turner offered to let the goods go on in the ship, if she went on the voyage. This was an act of ownership. We think the delivery sufficient.
    It has been said, trespass vi et armis will not lie, that it was not such a possession as will support this form of action. We think the action well brought. *
    This is not a case of exemplary damages. There .was no appearance of oppression, or misconduct, on the part of the Sheriff. On the other hand, the position of the defendants counsel is altogether unfounded, that you must be confined to the amount produced by the Sheriff’s sale. The proper criterion is the value of the goods; of the property illegally seized; and you may add reasonable expenses, and interest from the day of seizure.
    This charge was excepted to by the defendants. The jury gave a verdict for the plaintiffs for 1,565 dollars 75 cents.
    The following errors were assigned:
    1st. That Turner was an incompetent witness.
    2d. That the action for trespass was not maintainable.
    
      Scott and Phillips for the plaintiffs in error.
    1st. Although it was decided in Steele v. The Phoenix Insurance Company, that a plaintiff may make himself a witness, by assigning all interest in the suit, provided the costs are previously paid, yet the present case is distinguishable in this, that the interest of the plaintiffs in this action of trespass, was not assignable. Steele v. The Phoenix Insurance Company, was the case of an as-. signment of the plaintiffs interest in a policy of insurance, a matter of contract; but in this, it is a transfer of a claim founded on a tort, in which damages are to be recovered. The action would have abated by the death of the plaintiff, but for the provisions of the statute, 4 Ed. Ill c. 7. A claim either to a debt, or to uncertain damages, is not considered as a chose in action, unless it arise out of contract express or implied. 2 Bl. Com. 396. In Sommer v. Wilt, 4 Serg. & Rawle,. 28, Duncan, J. says, that an action on the case for malicious abuse of process, is not the subject of assignment, under the insolvent debtor’s act; it is neither estate, credit, nor effects: it is a personal action, which would die with the person. Suppose an action of slander, or assault and- battery: would the court permit the plaintiff in such suits, to assign the cause of action, and then become a witness ? The rule, as already established, has a tendency to encourage fraud: but it would be much more dangerous, to extend it to actions of tort. Besides, it was not shown, that the assignment had ever been accepted by Goodwin and Jones, or that it was known to them: the plaintiffs kept it in their own possession. It cannot be presumed that they would accept it, because Turner & Co., by giving up Fowle’s notes, became themselves responsible for the value. Although Turner deposited the costs, yet there is nothing to prevent his recovering them back; he might recover them of Goodwin and Jones, as money paid to their use. There ought to have been a stipulation, that they should in no event be restored to the plaintiff. Patton’s Administrators v. Ash, 3 Serg. & Rawle, 303.
    2d. As to the form of action. The property, when seized by 
      the Sheriff, was on board a vessel, where it had been placed by Fowle for exportation. We say, that possession had never been taken by .the plaintiffs, and therefore, they could not support trespass. Esp. Ev. 214. 8 Johns. 435. 11 Johns. 377. 12 Johns. 348.
    
      Kittera, contra.
    1st. It is objected that this action was not assignable, not being a chose in action. Jacobs, in his Diet. Tit. Chose, says, a right to sue for goods which have been taken, is a chose in action. And though the form of the action is trespass, it is to recover the value of the goods, as much as trover. As to the non-acceptance of the assignment, it was. in the hands of the counsel for Goodwin and Jones, for some weeks before the trial. In Smith v. The Bank of Washington, 5 Serg. & Rawle, 318, an assignment, of bank stock was made by a Witness, at the trial, to his daughter, then at a distance, and delivered to the cashier for her use, and the witness was held competent. The objection in relation to the eosts, is equally without weight: for where the costs are paid, in order to let in the plaintiff as a witness, it is always understood, that they are in no event to be recovered back.
    2d. Trespass was the proper form of action. Constructive possession is sufficient to support trespass, and the right'of property draws after it the constructive possession. 6 Bac. Jib. 563. Thus, if the. owner of goods at a distance, give them to J. S., and before J. S. have obtained the actual possession, a stranger take them, J. S. may maintain an action of trespass against the stranger: for by the gift, he acquired á general property in the goods. Bro. Jib. Tresp. PI. 303,' Latch, 214. In Dawes v. Polk, 4 Binn. 258, it is said, that where the delivery of possession is impossible, all that is required is to deliver such possession as the nature of the thing admits of. He also'cited 12 Mass. Rep. 300,Selw. N. P. 1Í05. Jlllenv. Smith, 10 Mass. Rep. 309.
    
   The opinion of the court was delivered by

GibsoN, J.

Steele v. The Phoenix Insurance Company, decides the point, that no objection lies to the competency of a witness, because he is a plaintiff on the record, and was the real party in interest when the suit was brought, if he has in the mean time divested- himself of all the interest which he had in the subject of the action. But as this is an action of trespass de bonis asportatis, it is urged that the property in the damages expected to be recovered, being for a mere tort, is so peculiarly attached to the person as to be inseparable from it; and consequently, that the interest of the plaintiffs in the subject of the suit, could not be assigned, because, before an actual recovery of damages, there was nothing for an assignment to operate upon. There are, undoubtedly, some injuries which so peculiarly adhere to the person of him who has suffered them, as to preclude an assignment of his claim to compensation for them, so as to make him a. witness: such, for instance, as slander, assault and battery, criminal conversation with the partys wife, and many others that might be mentioned; the right to compensation for any of these, would not pass by a statute of bankruptcy, or an assignment under the insolvent acts, nor could it be transmitted to executors or administrators. But this does not hold with respect to a trespass committed against, a party’s goods, the remedy for which survives to the personal representative, by the statute 4 E. 3, c. 7; which clearly shows, that such a cause of action is separable from the person of the owner; and it cannot be doubted, that it would pass by a commission,of bankruptcy; for, before actual recovery of damages for the trespass, the property, in the goods . themselves, remains in the original owner, or those who represent him. The subject matter of the demand, therefore, being clearly assignable, the objection on that ground cannot be sustained.*

It is further objected, that there was nothing to show, that the assignment was accepted by Goodwin and Jones, or that they ever knew of it. On this part of the case,-the bill of exceptions is not explicit, but enough appears to show that the plaintiffs below, had received these, very goods from Goodwin and Jones, on consignment; and the assignment of the action to them was, therefore, for a valuable consideration ; and as it was beneficial to Goodwin and Jones, their assent must be presumed. This principle was fully decided in Smith v. The Bank of Washington, 5 Serg. & Rawle, 318.

Another ground of objection is, that although a sufficient sum to cover all the costs that had accrued, or might accrue, was paid in the cause, yet as the plaintiff did not expressly stipulate, not to claim a return of any part of the costs so paid, in case of a verdict against the defendant, there was still an existing interest in the .witness, who being liable for costs, would divest himself of it only by an absolute and unconditional payment of all the costs in the suit. This objection is rested on an expression of the Chief Justice in Ash v. Patton’s, Admrs. 3 Serg. & Rawle, 300, butitis nottheresaid, that the stipulation must be express. The very act of paying costs to remove a disqualification on account of interest, includes in it a stipulation, that the costs are paid on conditions which are to have the effect of completely removing the interest objected to: and apayment on terms which; in case of a verdict against the adverse party, would enable the party on the record, to get something back, could not have that effect: his interest in promoting a recovery would remain. Then, for what purpose insist on having an express stipulation on the record ? In taxing the bill, the court would inquire into the conditions on which the costs were paid, and be governed by a consideration of the fact, that they had been paid actually to divest the party of interest, so as to'make him a competent witness. But the very point was determined in Conrad v. Keyser, 5 Serg. & Rawle, 370, where it is said, that the act of payment is itself, a stipulation.

The error assigned, with respect to the charge, cannot be sustained. The re assignment of the property by Fowle & Co. to the plaintiffs on the record, vested the title in them, and gave them a right to immediate possession. This right of property drew after it a constructive'possession, which is all that is necessary to sustain an action of trespass. The judgment, therefore, is affirmed.

Judgment affirmed.  