Lazard v. Wheeler

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. The complaint in this case avers that on the first day of June, 1859, the defendant wrongfully took certain county warrants, owned by Charles R. Johnson, and refused to deliver the same to Johnson upon demand, but unlawfully kept and detained the same; that on the first day of November, 1859, Johnson sold, transferred, and assigned to the plaintiff all his right, title, and interest, in the warrants and the. moneys which might be made on the same; that plaintiff has often since demanded the warrants of defendant, who refused to give them up; and that the warrants are of the value of eight hundred dollars; concluding with a prayer for judgment for the delivery of the warrants; or if a delivery cannot be had, then for their value, with three hundred dollars damages for the unlawful detention and costs of suit. To this complaint the defendant demurred, alleging as ground of demurrer-that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment rendered for the defendant for costs, from which the plaintiff appeals.

The questions necessary to determine this case are: 1st, can property of this kind, in the possession of a wrongdoer, be assigned by the owner ? and 2d, can such assignee maintain an action to recover the possession of the property, or for its value if possession cannot be had, with damages for its detention ? It does not appear [142].that the plaintiff sues to recover damages for the detention of the property prior to the assignment to him, so that the question, whether a right of action arising out of a tort is assignable, is not properly before us.

Replevin lies for all goods and chattels unlawfully taken or detained, and may be brought whenever one person claims personal property in the possession of another, and this whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right to the possession. (Morris on Replevin, 37.)

Where personal property is wrongfully detained, the owner may assign his title thereto, and the assignee may maintain an action therefor. (Cass v. The N. Y. and N. H. R. R. Co., 1 E. D. Smith, 522; McGinn v. Worden, 3 Id. 355; Hall v. Robinson, 2 Comstock, 295; The Brig Sarah Ann, 2 Sumner, 211; 2 Hilliard on Torts, 275.)

A right of action for the wrongful taking and conversion of personal property is assignable, and under the provisions of the code the assignee can recover upon the same in his own name. (McKee v. Judd, 2 Kernan, 622; Hoyt v. Thompson, 1 Selden, 347; see also North v. Turner, 9 Serg. & Rawle, 244.)