Robinson v. Weeks. that should be made to appear before the motion can be granted ex parte. Order refused. SUPREME COURT. General Term.-Seventh District, September, 1851. ROBINSON v. WEEKS. A right of action for a tort for the taking or conversion of personal property may be assigned. In an action to recover damages for the conversion of personal property and verdict for the plaintiff, an assignment after verdict and before perfecting the judg ment in the action, is lawful, and vests the title to the judgment when perfected in the assignee. The case of Gardner v. Adams, 12 Wend. 297, in part overruled. The 293d section of the code is permissive merely. A debtor of a judgment debtor who pays to the sheriff under section 293 the amount of his indebtedness to the judgment debtor does so as a volunteer and at the peril of such judgment debtor having previously assigned his claim; and this result will follow notwithstanding that the assignee of the judgment debtor has given no notice of the assignment. By the Court, JOHNSON, J.-This is an appeal from an order at special term, denying a motion to set aside the execution issued in this cause. The action was for the conversion of a certain amount of money in bank bills; and after the trial, but before the judgment was perfected, the plaintiff sold and assigned the judgment he might recover to his attorney in the action, bona fide, and for a good and valuable consideration. The judgment was perfected 10th of August, 1849, and on the next day the defendant, without any notice of the assignment, paid the amount to the sheriff of Steuben county on two executions then in his hands for collection, in favor of Daniel G. Smith against the nominal plaintiff. Robinson v. Weeks. The defendant's counsel insists that the plaintiff's attorney by the assignment to him acquired no title to the judgment for two reasons. First, that the cause of action was tort, and not assignable; and, second, that at the date of the assignment there was no judgment in existence; and the assignment gave no title to the judgment perfected afterwards. To sustain the first ground, Gardner v. Adams (12 Wend. 297) and The People v. Tioga Com. Pleas (19 Wend. 93), are relied upon. In Gardner v. Adams, the court only held that a tort was not assignable so as to warrant an action in the name of the assignee, as the court expressly declare in People v. Tioga C. Pleas; and in the latter case it was held that a tort merely personal was not assignable, so that a court of law would protect the assignee against the subsequent fraudulent discharge of the judgment by the assignor. I confess I have never been able to see how the case of Gardner v. Adams, upon the point relied upon, could be sustained upon principle, even if the court intended to go no farther than CowEN, J., says it did in People v. Tioga Com. Pleas. The case upon this point is without principle or authority to support it, and should be overruled. HOYT, J., in Hall v. Robinson (2 Coms. 296), in commenting upon this case says, "the decision can not be upheld either upon principle or authority." But in regard to the general doctrine of the assignment of torts. The case of People v. Tioga C. P. does not deny but seems rather to concede that a tort for the taking or conversion of personal property may be assigned; and the case of North v. Turner (Serg. & Rawle, 244), is cited with approbation, which expressly holds that such a claim may be assigned. It is a right which passes to an executor or an administrator, and I think there can be no doubt that it may lawfully be assigned so as to vest the assignee with all the rights the assignor had at the time of the commission of the tort. The whole difficulty in regard to it seems to have arisen from not distinguishing between such cases and mere personal torts, as assault and battery, slander and the like, which die with the person, and which all the authorities agree cannot be assigned. Robinson v. Weeks. It will be seen on a moment's reflection, that the two cases or rights of action, although both coming under the general classification of torts, have really little resemblance to each other. In the latter case there is nothing to assign but a mere injury, which does not survive the decease of the injured party, and in which no person can be regarded as having any property. While in the former the right and title to property of which the assignor is still undivested, goes with the assignment and vests in the assignee, or in the executor or administrator, on the death of the party against whom the tort was committed. I take it an assignment of the cause of action would necessarily carry with it the assignor's title to the property, because by prosecuting the action to judgment and obtaining satisfaction, the title becomes vested in the wrong doer, and the purchaser must be regarded as acquiring the whole right by the assignment and authority to prosecute.* The assignment of a bond merely carries with it by operation of law the mortgage, and draws after it the land (Jackson v. Blodgett, 5 Cowen, 202; Green v. Hart, 1 John. 590; Martin v. Mowlin, 2 Barr, 978). In the case of the death of a party whose property has been tortiously taken and who has not elected to bring his action in his lifetime, the title vests in the executor or administrator by operation of law, and he may bring his action for the original tort, or proceed and retake the property, as he may elect. This view of the case answers the defendant's second objection to the assignment, that there was no judgment when the assignment was executed. The assignment carried the whole title to the subject matter of the action, and of course to the judgment, when perfected. As between the parties to the assignment, clearly the whole right passed to the assignee, and the defendant, the moment the judgment was perfected, became the debtor of the assignee and not of the nominal plaintiff. Nor was any notice to the defendant. necessary except for the purpose of protecting the assignee against the acts of his assignor. The defendant's counsel also contends that the payment to the * Does the amendment made in 1851 to the 111th section of the code affect this branch of the opinion? Robinson v. Weeks. sheriff on the two executions in his hands in favor of Smith against the plaintiff to the amount of this judgment, operates as a satisfaction and discharge of the same, even conceding the validity of the assignment, in as much as the defendant had no notice of the assignment, and the code (§ 293) authorizes such payments to be made by any debtor of judgment debtors. The difficulty in the way of the defendant is that at the time of making these payments to the sheriff he was not in fact indebted to the judgment debtor, whose debts he volunteered to pay. The nominal plaintiff here had at that time no debt or demand against the defendant, which he could enforce at law or equity. It will hardly answer, I think, to say that as he had no notice of the assignment he had a right to regard himself as the debtor of the plaintiff, and is therefore to be protected. The code, it is true, authorizes a debtor of the judgment debtor to pay the amount of his debt upon any execution against the latter in the sheriff's hands; but it does not make it his duty to do so. It imposes no obligation upon him whatever; and if a party indebted, instead of paying his debt to the person to whom he supposes himself indebted, and where he might learn the true state of the matter, chooses to go and pay another debt, which the law does not require him to pay, and to a person who has no opportunity of knowing whether or not he is really the debtor of the person whose debt he undertakes thus to satisfy, I think he does it at his peril. He must see to it that he pays his creditor's debt or the law will not protect him. He should be regarded as a volunteer, taking the risk of paying the right debt. Had the defendant paid to the nominal plaintiff the amount of the judgment and taken his discharge, without notice of the assignment, he would, without doubt, have been protected. Such payment and discharge would have been good against the assignee omitting to give notice of his rights. But the assignee in that case would have had his remedy against such nominal plaintiff by an action for a breach of the implied conditions of the assignment. Here, however, the party assigning has done nothing in violation of the assignment. The opposing affidavits show that the payments were made upon the executions against him without his knowledge or approbation and against his wish. The assignee, therefore, cannot allege that the plaintiff has done Robinson v. Weeks. anything in violation of the express or implied conditions of the assignment, and consequently has no remedy upon the agree ment. The assignor impliedly agrees in every assignment where it is not embodied in express terms, that he will not collect or discharge the judgment himself, nor interpose any obstacle to its collection by his assignee. But it would be going quite too far to hold that he impliedly undertakes to pay all demands that do then or may thereafter exist against him before judgment and execution, and thus prevent all other persons from satisfying the judgment under this extraordinary provision of the code. If these payments to the sheriff were to operate to discharge the judgment as against the assignee, this anomalous result would be produced. The assignee not only has judgment satisfied and discharged without any equivalent, but is deprived of all remedy against his assignor, while a third person, a total stranger to both the real plaintiff and the defendant in the judgment, who had no right or claim to it in law, or equity, or ethics, succeeds in collecting it and retaining the money without being liable to any one. It is clear that Smith, by no proceedings at law or equity, could have obtained the amount of this judgment against the assignee. A general assignment to a receiver under the order of the court, or the bankrupt or insolvent laws, by the nominal plaintiff, would have given such receiver or assignee no title to the judgment as against the assignee, even without any notice whatever (Muir v. Schenck, 3 Hill, 228). Smith had no equities as against the assignee. His executions were no lien upon the claim when assigned, and the assignee was not bound to take notice of them or inquire after them. This was held by WILLARD, J., in Countryman v. Boyer (2 Code Rep. 4), as I think, correctly. The assignee of judgments and choses in action, will be protected against executions in the hands of the sheriff. The code has not gone quite so far as to make judgments and executions issued thereon liens upon choses in action, or a notice equivalent to a lis pendens. The defendant has not paid the debt of the right judgment debtor, in this case, and the judgment still remains unsatisfied against him.* The order of the special term must, therefore, be affirmed. * See further Davenport v. Ludlow, 3 Code Rep. 66. |