Whitaker v. Gavit

Ellsworth, J. The first error complained of, is, that the court below decided, that the plaintiffs had an equitable title to the chose in question. In this, we think, there is error. The plaintiffs pretend' to no title, except one from Giles M. Eaton, a trustee, substituted, by the court of probate, for Edward Chappel. From whence did Eaton derive his title, if the chose in action was not, as confessedly it was not, in the assignment? the ‘«-design, intention and agreement of Clark” (though with whom it is not said,) to the contrary, [526] notwithstanding. Since Clark has not, by any general or particular descriptive language, included this claim in his assignment, it is not assigned ; that is all. The court cannot make an assignment for him, whether the omission is attributable to design or mistake. Besides, an assignment under the statute of 1828, must be in writing, and recorded. All the property, which it is claimed passes by it, must be embraced within the description used in it. The description may be very general; but it must be there, and speak for itself. A parol assignment, and much less one only intended, is no assignment at all, under the statute, and gives no jurisdiction to the probate court. Property not found in the assignment cannot, properly, be inventoried, or appraised ; nor is it covered by the bond executed to the judge of probate. If it is, how can the surety know the extent of his liability, or the court know when the trustee has closed his trust l Other questions have been made, but they become unimportant, for the reasons already assigned. We will remark, however, that it is by no means certain, any mistake in fact has intervened. And if not, then according to the cases of Hunt v. Rousmanier, 1 Pet. 1. and 8 Wheat. 211. Wheaton v. Wheaton, 9 Conn. R. 96. The Chesnut-Hill Resorvoir Co. v. Chase, 14 Conn. R. 124. and cases cited in 1 Story’s Eq. 124. a court of equity cannot interfere, and especially in behalf of a statute trustee against an attaching creditor. The defendants deny that the claim of Clark against Williams, is, before judgment, of the nature of property, and capable of assignment. They say, it is a mere right of personal redress for a tort, and that to buy it is champerty and maintenance. It is certain that a right of action for a personal injury, as for an assault and battery, slander, malicious suit &c. is not assignable even in equity; nor would a right of action for an injury to personal property pass to an executor or administrator, except by the statute of 4 Edw. 3. or in this state, by the same statute, or that of 1836. Stat. 75. (ed. 1838.) Modern authorities, it appears to us, go far towards deciding, that this claim might have been assigned, had it been specified in the assignment. They» hold, that a right of action for an injury to property growing out of con [527] tract, if not for all injuries to property, will pass to an assignee in bankruptcy. In the case of Comegys v. Vasse, 1 Pet, 213 where this subject is fully discussed, Story, J. in giving the opinion of the court, says: “ In general, it may be 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 Smith v. Coffin, 2 H. Bla., 451. Lord Ch. J. Eyre says, “ every beneficial interest, which the bankrupt has, shall be disposed of, for the benefit of his creditors.” And Butter, J., in the same case, says — “ The object of the statute of bankruptcy is, that every thing belonging to the bankrupt, that can be turned into profit, shall pass by the assignees for the benefit of creditors.” So in Wright v. Fairfield, 2 B. & Adol. 727. (22 E. C. L. 175.) Lord Tenterden says, “ that the object of the statute 6 Geo. 4. ch. 16. was, to give the assignment, for the benefit of the creditors, every beneficial matter belonging to the estateand it was held by the court, that a right to sue for a breach of a contract to supply stones, passed to the assignees, though the damages were unliquidated. Lord Tenterden considered that the right of action was part of the bankrupt’s estate. In Drake v. Beckham, 11 Mee. & Wels. 316. Lord Denman, Ch. J., in giving the opinion of the court, says : “There is no doubt, that a right of action for an injury to the body or feelings of a trader arising from a tort, independent of contract, does not pass to his assignees, e. g. for an assault and battery, or slander, or the seduction of a child or servant. And the same may be said of some personal injuries arising out of breaches of contract, such as contracts to cure or marry ; and if in the cases last supposed, a consequential damage to the personal estate follows from an injury to the person, that may be so dependent upon, and inseparable from, the personal injury, which is the primary cause of action, that no right to maintain a separate action in respect of such consequential damage, will pass to the assignees of a bankrupt. In all those cases, the primary cause of action, if of a nature, properly speaking, personal, and the right to maintain it, would die with the bankrupt. In the present case,” he continues, “ although the contract was for the [528] > personal skill and labour of the bankrupt, the breach of that -contract does not appear to cause him any other injury than the diminution of his personal estate. In the cases referred to, the injury (if any) to the personal estate, is the consequence of an injury to the person: in this case, the injury to the person (if any) is the consequence of an injury to the personal estate. The injury to the personal estate is. therefore, in this case, the primary and substantial cause of action ; and we think, according to the authorities, such right of action would pass to the assignees, as part of the personal estate, it being a matter belonging to the bankrupt, whereof profit may be made.” In Howard v. Crowther, 8 Mee. Wels. 601. 604. Lord Abinger says: “ Nothing is more clear, than that a right of action for an injury to the property of the bankrupt, will pass to his assignees ; but it is otherwise as to an injury to his personal comfort. Assignees are not to make a profit of a man’s wounded feelings. Causes of action, therefore, which are purely personal, do not pass to the assignees; but the right to sue remains with the bankrupt.” See further Sullivan, asssignee, v. Bridge, 1 Mass. R. 511. Shoemaker & al. v. Keeley, 1 Yeates 245. 2 Dall. 213. 9 Ser. & Raw. 244. 4 Ser. & Raw. 19. 28. 13 Ser. & Raw. 54. Eden on Bank. 235. s. 10. As the decision of the court does not rest on this question, we shall not further pursue it. We have a strong impression, that the chose in action, which is here the subject of controversy, would have passed, had it been in the assignment. We would further remark, if the question of jurisdiction can properly come before us, under the assignment of errors, we do not perceive why the plaintiffs have not adequate relief at law. They can successfully defend in the scire-fa-cias ; for they have an equitable title to this chose in action, as was decided, in the case of Barber v. The Hartford Bank, 9 Conn. R. 407. We advise that there is manifest error. In this opinion, Church, Ch. J. and Storks and Hinman, Js., concurred.