real or personal property, or if it be made in a contract by which real or personal property is to be acquired or transferred, or if it be the basis of or inducement to any act which results in a change. of right relating to property. Of course, any fraud or false representation which merely affected personal relations, or was the basis or occasion of any change in purely personal status or condition, independent of and not connected with property, would not give rise to a cause of action which survives and is assignable. In accordance with the rule thus stated, a demand for damages arising from false representations, or from fraud of any kind, in the sale and purchase of land, would survive and may be assigned; and the same is true in respect to a sale of goods. And a claim to recover money or other personal property which the defendant had obtained or procured to be transferred to him by fraud, is assignable.2 The right of action given by statute to recover back money lost in gaming is assignable; and also a judgment rendered of damages for the commission of any tort whatsoever; for, although the tort itself may have been purely personal, it is completely merged in the judgment which is, by a very ancient conception of the law still left existing, regarded as "a contract of record." 4

§ 151. The following are examples of demands arising out of some special forms of contracts, and of special rights and interests. analogous to if not technically things in action, which have been held assignable. In reference to the contracts specified, the only possible doubt which could be suggested was, whether they did not fall within the class of agreements purely personal in their nature, the right of action arising from which does not survive. A contract entered into by a private person with the prison authorities of the State, for the hiring of the services of a stipulated number of convicts at a particular State prison, to be employed in a certain occupation, was held assignable by the

1 Haight v. Hayt, 19 N. Y. 464; Graves v. Spier, 58 Barb. 349; Johnston r. Bennett, 5 Abb. Pr. (N. S.) 331; Woodbury v. Deloss, 65 Barb. 501.

Byxbie v. Wood, 24 N. Y. 607, 609; Grocers Nat. Bank v. Clark, 48 Barb. 26. In the first of these cases, Zabriskie v. Smith, 13 N. Y. 322, was distinguished, and the correctness of the decision was questioned because the court overlooked

the provision of the N. Y. R. S. (Vol. 2, p. 447, §§ 1, 2), which determine what rights of action survive and what do not.

3 Meech v. Stoner, 19 N. Y. 26; McDougall v. Walling, 48 Barb. 364; Hendrickson v. Beers, 6 Bosw. 639. Contra, Weyburn v. White, 22 Barb. 82, which is overruled by the later cases.

4 Charles v. Haskins, 11 Iowa, 329.

New York Court of Appeals. The agreement was not a stipu lation for the personal services of the contractor, nor was he in a position of any public or personal trust or confidence, and the State officials having no claim upon his individual acts in preference to those of another, his interest could be transferred. A contract of guaranty may be assigned; 2 and the right to a trademark; a widow's right to dower before admeasurement; the claim of a rightful officer against an intruder for the fees of the office received by the latter during the period of his occupancy;5 a sheriff's demand against an attorney for his fees in executing process; bonds taken by sheriffs and other officers in the progress of an action for the protection of a party thereto. An assignment of demands in expectancy is valid in equity as an agreement, and becomes an absolute transfer as soon as the demands arise and come into existence in favor of the assignor; and the assignment of part of a demand of which notice is given to the debtor is also good in equity, so that when separate portions are thus assigned to different persons, each assignee may maintain an action to recover the part transferred to him.

§ 152. Second: What things in action are not assignable. The general principle which determines what claims, demands, and rights of action are not assignable, has been already fully stated in the text and in the quotations placed in the notes, and need not be repeated. It is simply necessary to ascertain, and the sole practical difficulty consists in ascertaining, what particular torts are injuries, bodily or mental, to the person only, or to the reputation, and what particular contracts are purely personal, so

Horner v. Wood, 23 N. Y. 350.

2 Small v. Sloan, 1 Bosw. 352.

been paid, and the plaintiff notified the city of the transfer. Bull proceeded with

8 Lockwood v. Bostwick, 2 Daly, 521. his work, and amounts became due to

4 Strong v. Clem, 12 Ind. 37.

5 Platt v. Stout, 14 Abb. Pr. 178. Birbeck v. Stafford, 14 Abb. Pr. 285. Moorman v. Collier, 32 Iowa, 138. 8 Field v. The Mayor, &c. of New York, 6 N. Y. 179. This action was commenced in equity before the code. One Bull had various contracts with the city of New York for printing, and was engaged in their performance by printing for the city. He assigned to G., and G. to the plaintiff, whatever might become due thereon to the amount of $1500, after two certain other prior similar assignments had

him, which satisfied the two prior assignments, and were more than enough to satisfy the plaintiff's demand. The Court of Appeals held in accordance with the rules stated in the text, and also that payment by the debtor - the city-to the original creditor,- Bull,— after notice of the assignment, is no defence to an action by the assignee. Although this suit, commenced under the old system, was in equity, the doctrine recognized by it must be applicable to a civil action under the code. See Bliss v. Lawrence, 58 N. Y. 442.

that the right to enforce them, or the liability springing from them, does not survive after the death of a contracting party.1 The following cases are given as illustrations of such wrongs and of such contracts. A cause of action for injuries to the person caused by negligence is not assignable, even though the injured party has an election whether to base his demand upon the tort or to sue upon a contract express or implied; for example, a right of action against a railroad corporation for injuries caused by negligence to the person of a passenger. If the right is regarded as arising from a breach of the contract to carry safely, such contract itself falls within the class mentioned above, since its violation causes mere bodily or mental injuries to the person, and not in any manner to property. The quality of assignability cannot be impressed upon a demand by changing the theory of the action brought upon it.2 A verdict rendered in an action for a personal tort is not assignable; the verdict does not change the nature of the right; it liquidates the amount of the damages, but there is no debt or claim which can pass by assignment until a judgment is recovered. It was decided by the New York Court of Appeals, in a well considered case, that a claim of damages for falsely and fraudulently representing a person to be solvent, by which the party to whom the representations were made was induced to sell goods to such person on credit, and thereby lost the same or their price, was not assignable. This case was distinguished from that in which the wrong-doer by false statements procures goods to be sold to himself on credit, and it was said that the gist of the action was a pure deceit, a tort to the person and not an injury to property rights. Although Zabriskie v. Smith has not been expressly overruled, its reasoning has been disapproved, and it is at least very much shaken. It is conceded that the court, in rendering its judgment, overlooked a

A non-negotiable note, payable in work and labor, is assignable. Schnier v. Fay, 12 Kans. 184; Williams v. Norton, 3 Kans. 295.

Purple v. Hudson River R. R., 4 Duer, 74; s. c., 1 Abb. Pr. 33; Hodgman v. Western R. R., 7 How. Pr. 492. A claim for damages resulting from a malicious prosecution and abuse of legal process was held not assignable, although the complaint alleged injury to the assignor's business and loss of property as a

consequence. The cause of action was held to be for a mere personal tort, while the other averments were of special damages. Noonan v. Orton, 34 Wisc. 259.

3 Brooks . Hanford, 15 Abb. Pr. 342; Crouch v. Gridley, 6 Hill, 250; Kellogg v. Schuyler, 2 Denio, 73; Lawrence v. Martin, 22 Cal. 173 (verdict in an action for malicious prosecution).

4 Zabriskie v. Smith, 13 N. Y. 322; Hyslop v. Randall, 4 Duer, 660 (S. T.)

section of the statute which virtually enumerates the classes of demands arising from torts which cannot be assigned, and which enumeration does not include the demand in question. As the cases decided subsequently are quite inconsistent with the conclusion reached in this case, it may be regarded as substantially overruled; and, applying the doctrine of those authorities, it would seem that the right of action for such a deceit is assignable.1

§ 153. It has been held in one or two instances that a demand against a common carrier for the loss of goods intrusted to him was not assignable; 2 nor the cause of action given by statute to recover back money lost in gaming; but these decisions are clearly wrong, and have been many times overruled, as is seen by authorities cited in former paragraphs. A wife's inchoate right of dower is not the subject of grant or of assignment. The following are illustrations of personal interests or rights which cannot be assigned: the right given to the debtor by statute to have bills, notes, and other securities avoided or cancelled on the ground of usury; the right held by a covenantee to set aside, on account of fraud, a release which he had given of a covenant in his favor; the right of a grantor to avoid his conveyance on

In Haight v. Hayt, 19 N. Y. 464, 467, Grover J., after quoting the N. Y. R. S. v. 2, p. 448, §§ 1 and 2,- the first of which sections declares that demands arising from torts to property rights shall survive, and the second of which provides that the first shall not extend to "actions for slander, for libel, or to actions for assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff or to the person of the testator or intestate," - adds: “The exceptions contained in the second section manifest the intention of the legislature that all other actions founded upon tort should survive." And Judge Denio, who had himself delivered the opinion in Zabriskie v. Smith, said in this same case, in reference to these sections of the statute: "The exception in § 2 shows, if there was otherwise any doubt, that the prior section was intended to embrace the case." This reasoning and these statutory provisions are entirely inconsistent with the decision made in Zabriskie v. Smith. Again, in Byxbie v. Wood, 24 N. Y. 610, Gould J., speaking of the same case, after

commenting upon it and distinguishing it from the one before the court, remarked: "As to that decision, it may be advisable to see how fully it accords with the R. S. vol. 2, p. 447, §§ 1 and 2" Finally, in Johnston v. Bennett, 5 Abb. Pr. (N. S.) 331, 332, Jones J. said: “When Zabriskie v. Smith was decided, these provisions of the statute (§§ 1, 2, supra) do not appear to have been called to the attention of the learned judge who delivered the opinion." On the other hand, in Graves v. Spier, 58 Barb. 349, Mr. Justice Johnson in his elaborate opinion seems to recognize Zabriskie v. Smith as good law; at least he carefully discriminates it from the one then under consideration, points out the differences, and does not suggest a doubt as to its correctness.

2 Thurman v. Welles, 18 Barb. 500. 3 Weyburn v. White, 22 Barb. 82. 4 Moore v. Mayor, &c. of New York, 8 N. Y. 110, per Gardiner J.

5 Bullard v. Raynor, 30 N. Y. 197; Boughton v. Smith, 26 Barb. 635.

6 Milwaukee & Minn. R. R. v. Milwaukee & West. R. R., 20 Wisc. 174.

the ground of fraud;1 and the vendor's right of lien on land sold, for the purchase price thereof.2

SECTION FOURTH.

THE EFFECT OF AN ASSIGNMENT OF A THING IN ACTION UPON THE DEFENCES THERETO.

§ 154. The statutory provision found in the various State codes which relates to the subject-matter of this section is the following: "In the case of an assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or other defence existing at the time of or before notice of the assignment; but this section shall not apply to [negotiable bonds, Ohio, Kansas, Nebraska] negotiable promissory notes and bills of exchange, transferred in good faith and upon good consideration, before due."3 In Ohio, Kansas, Nebraska, and Washington, the phraseology is slightly different. It reads: "The action of the assignee shall be without prejudice to any set-off or other defence now allowed." The consideration of the topics embraced in this provision should, in a strictly scientific method, form a part of the general subject of Defences, and might properly be postponed until this portion of the work is reached; but I have chosen to pursue the order of the codes themselves, which is the same in all the States, rather than to adopt one more theoretically correct, yet perhaps not more practically advantageous. § 155. It is important that the defences which this clause admits, should be carefully distinguished from the counter-claim subsequently provided for by the statute. This section speaks of defences which, as they ask no affirmative relief, and simply prevent the plaintiff from succeeding, may be made available against an assignee as well as against the original creditor. The counter-claim is more than a defence: it assumes a right of

1 Smith v. Harris, 43 Mo. 557.

? Baum v. Grigsby, 21 Cal. 172; Lewis . Covillaud, 21 Cal. 178; Williams v. Young, 21 Cal. 227.

§§ 28, 382; Nevada, § 5; Dacotah, § 65; Iowa, § 2546 (slightly altered); North Carolina, § 55; Idaho, § 5; Montana, § 5; Washington, § 3; Wyoming, § 33; Arizona, § 5.

New York, § 112; Minnesota, § 27; California, § 368; Wisconsin, ch, 122, § 13 ; 4 Ohio, § 26; Kansas, § 27; Nebraska, Indiana, § 6; Florida, § 63; Kentucky, § 29; Washington, § 3, slightly varied. 31; South Carolina, § 135; Oregon,