Oliver v. Walsh

Mr. Justice Heydenfeldt delivered the opinion of the Court Mr. Chief Justice Murray and Mr. Justice Terry concurred. The District Court erred in overruling the demurrer to the amended complaint on the ground of non-joinder of a party plaintiff. The complaint shows upon its face that the wrong complained of was an injury to the joint property of the plaintiffs and one Usher, who they allege had sold his interest to them. But a chose in action arising out of a tort is not assignable, and therefore Usher was a necessary party plaintiff. The language of § 4 of the Practice Act, as amended by the Act of [457] 1855, which says, “ or thing in action not arising out of contract,” is construed by us to mean a thing in action not arising out of express contract, and such doubtless was the intention of the Legislature. Even as we have construed the clause, and allowed it to have effect in giving the right of assignment in cases of contract, where such right did not exist before, it is only by implication, for there is no statute which directly gives the right, or directly repeals the former rule. But we cannot extend this implication so as to embrace choses in action arising out of torts. Such a rule would produce great absurdities, would lead to dangerous practices, and would be a premium for the commission of champerty, and would bring the legislation and judicial system of the State to well merited contempt. Judgment reversed and cause remanded.