Hodgman v. Western Rail Road

Harris Justice. At common law, no mere right of action was so assignable as to pass the legal right of the assignee—-when it affected the estate of the assignor, though the legal right still remained in the assignor, so that the action must be prosecuted in his name, the court exercising its equity powers, would protect the rights of the assignee. The only change made by the Code, in this respect, is to transfer, with the beneficial interest, the right of action also, in those cases, where before the court would recognize and protect the rights of the assignee. No new 494 right of action is created; no authority is given to assign a right of action which before was not assignable. When the right of action is of such a nature as not to be the subject of a contract, as in the case of a violation of personal or relative rights, it can not be assigned. The action can only be maintained by the party who has been injured, and when he dies the right of action also dies. Every right of action involving life, health or reputation, belongs to this class. So a right of action, founded upon a breach of promise of marriage, being in its nature a personal injury, can not be transferred. On the other hand, where the injury affects the estate rather than the person, where the action is brought for damage to the estate, and not for personal suffering, the right of action may be bought and sold. Such a right of action upon the death, bankruptcy or insolvency of the party injured, passes to the executor or assignee, as a part of his assets, because it affects his estate, and not his personal or relative rights. Of course, such a right of action is assignable, and, under the provisions of the Code, the assignee is the proper party to maintain the action upon it (The People vs. Tioga Common Pleas, 19 Wend. 73; 1 Chitty’s Pl. 68; Chamberlain vs. Williamson, 2 Maule & Sel. 408; Robinson agt. Weeks, 6 How. Pr. R. 161; Flynn agt. The Hudson River Rail Road Co. 6 id. 308; Comeggs vs. Vasse, 1 Peters 213). In the latter case, Story, J., says: “In general, it maybe affirmed that mere personal torts, which die with the party, and do not survive to his personal representative, are not capable of passing by assignment; and that vested rights ad rem and in re, possibilities coupled with an interest, and claims growing out of and adhering to property, may pass by assignment.” In this case, the injury which constitutes the gravamen of the complaint was personal. The plaintiff, as assignee, seeks to recover damages for the personal suffering of another. The injury set forth in the complaint had no- reference to the estate of the party injured. It merely affected her health and personal comfort. The right to compensation or damages for such an injury can not be transferred. It is, from its very nature, inalienable. The defendants must, therefore, have judgment upon the demurrer.