Stewart v. Lee , 70 N.H. 181 ( 1899 )

All choses in action, with a few exceptions not material in any view of this case, which descend to or survive against the administrator of a deceased person, can be assigned. Jordan v. Gillen, 44 N.H. 424, 426. An action for a breach of promise of marriage did not survive at common law, for although in form ex contractu, it is in fact to recover damages for a personal injury, and all such actions died with the person (Vittum v. Gilman, 48 N.H. 416; Sawyer v. Railroad, 58 N.H. 517; Jenkins v. French,58 N.H. 532); but the legislature has from time to time added other causes of action to those which survived at common law, until now all actions and causes of action survive except those to recover penalties. Laws, ed. 1830, p. 96; R. S., c. 186, s. 14; Laws 1844, c. 139; C. S., c. 198, s. 14; G. S., c. 207, ss. 11, 12; Laws 1872, c. 48, s. 1; G.L., c. 226, ss. 11, 12; Laws 1885, c. 11, s. 1; Laws 1887, c. 71; P. S., c. 191, ss. 8-14. This is the effect of the language used in the present statute, giving it its ordinary meaning, and there is nothing to show that the legislature intended to give it any other.

The defendants' contention that the legislature intended that only those personal actions should survive which are brought to recover for physical injuries is not supported by the evidence; for the legislature, after providing that such actions should survive for the benefit of particular persons (P.S., c. 191, ss. 8-13), enacted that all other actions and causes of action existing in favor of or against a deceased person, except actions upon penal statutes, should survive (Ib., s. 14), thus clearly showing that they did not intend to limit the causes of action which survive to those to recover for physical injuries. Vittum v. Gilman, supra, Sawyer v. Railroad, supra, and Jenkins v. French, supra, relied upon by the defendant in support of his position, were all decided when the common-law rule was in force in this state.

With this view it is immaterial whether the facts are as they appear in the reserved case, or as assumed in the defendants' brief; for both an action for breach of promise of marriage, and the judgment recovered in such action, survive by statute and can be assigned. Jordan v. Gillen,44 N.H. 424, 426; Hilliard v. Beattie, 67 N.H. 571.

The assignment of a chose in action does not vest the legal title in the assignee, and he cannot maintain an action upon it in his own name; but it gives him such an equitable interest that he can maintain an action in the name of the assignor, and the court will not suffer the original parties to interfere with its prosecution after the debtor has notice of the assignment. Jordan v. Gillen, 44 N.H. 424, 427; Thompson v. Emery,27 N.H. 269; Baker v. Davis, 22 N.H. 27, 35.

As Lee knew of the assignment to the plaintiffs in interest before he obtained the release, his act in obtaining it cannot affect their rights, and his motion was properly denied.

Exception overruled.

BLODGETT, C.J., did not sit: the others concurred.