Morris, for use of Rupp, versus McCulloch.
An assignment of a debt carries with it all the remedies and securities which the assignor had, but does not include a personal right of action founded on a tort which the assignor had against a third party, although arising from the same subject-matter.
October 24th 1876.
Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
Error to the Court of Common Pleas of Armstrong county : Of October and November Term 1876, No. 170.
This was an action on the case, brought in the name of Robert Morris, for the use of F. J. Rupp, against James A. McCulloch, to recover the amount of a judgment entered in the Common Pleas of Armstrong county.
The facts were these: On the 21st of May 1857, Robert Morris sold to John Moyer certain real -estate in Freeport, and took from Moyer a judgment-bond as security for the unpaid purchase-money. This bond was given to McCulloch, as -attorney for Morris, to enter *35judgment thereon. McCullough filed a narr. and entered judgment upon the bond on the 11th of July 1857 ; but the narr. was filed and the judgment entered against Jacob .instead of John Moyer, the obligee in the bond. The bond Avas payable in instalments, and the first instalment, which fell due May 21st 1858, Avas assigned by Morris to Rupp, and paid by the defendant, John Moyer, at maturity. The instalments due on the bond in 1859 and 1860 were sold by Morris to John M. Orr, who subsequently assigned them to Rupp ; but before they had matured the property of Moyer was sold by the sheriff and the funds referred to an auditor for distribution.
The judgment of Morris would have been the first lien on this fund, had it been properly entered; but the auditor held that, OAving to the mistake made by the attorney in the entry of the name, there was no notice to subsequent creditors, and that the judgment could not be treated as a lien, and therefore aAvarded the fund to the subsequent judgment-creditors ; Avhich a.Avard the court afterwards confirmed.
Rupp then brought this action on the 12th of May 1863, to recover from McCullough the amount thus lost; and the jury AYere SAYorn, and the action proceeded to trial in the name of Morris for use of Rupp, Morris being present as a Avitness in the cause.
At the trial the defendant offered in evidence a deposition of Morris, wherein he stated that he had not been injured by the alleged negligence of defendant, and that the present action AYas not brought by his direction nor at his instance. This deposition, under objection, was admitted.
About the close of the trial a paper, signed by Morris, was produced and offered, wherein he disclaimed all interest in the case, and so far as he Avas concerned requested its discontinuance, as it AYas instituted Avithout his authority and Avithout consultation by the assignee. This paper, under objection, was also admitted in evidence.
The court, Boggs, P. J., charged the jury :—
“ The narr. mentioned and referred to in the declaration in this suit was filed July 10th 1857. That declaration shoAvs the entry of a* judgment in favor of Robert Morris against Jacob Moyer, and the use party, plaintiff, contends that the defendant here was the Slaintiff’s attorney who dreAY up and filed that narr., and that in so oing he AYas guilty of negligence, and entered judgment against Jacob Moyer, when the bond was the bond of John Moyer, and Avhen the judgment should have been entered against him instead of Jacob Moyer. The defendant denies this allegation, and that forms the first question for your consideration. If you find from the evidence that this allegation is true, then the defendant becomes liable to Robert Morris for negligence, and for whatever amount of damages he actually sustained by reason of such negligence. *36The ground of the action is negligence, and damages the result. Robert Morris could recover such damages in his own name as legal plaintiff, and so too if he assigned his damages, if any he sustained, with the cause of action, to E. J. Rupp. In that case the plaintiff could recover by using the name of the legal plaintiff, Robert Morris, for his use, as this suit is brought. But if Robert Morris ever had a cause of action, but did not wish to sue for the same, and did not sue therefor, no outside or other person could bring suit in his name for him, especially when he dissents and refuses to sue, unless, as already remarked, he had assigned his cause of action and damages. There is no evidence in this cause that Robert Morris ever assigned to E- J- Rupp, the use party, his cause of action and damages, if he had any. The cause of action accruing to Robert Morris was founded in tort, and he might waive his rights as to the tort and refuse to assign the same. And I think the law will not infer the assignment of a cause of action for such tort, and therefore instruct you that the written assignment of part of the judgment by Robert Morris, given in evidence, did not convey with it any cause of action or damages Robert Morris may have sustained by reason of the defendant’s negligence, and therefore the use party, plaintiff, cannot recover in this suit. And if you find, from the evidence in the cause, that Robert Morris did not institute this suit, nor authorize it to he brought, and claims no interest in it, then there can be no recovery in this case, and your verdict should be for the defendant.”
The verdict was found accordingly, and plaintiff took this writ, and among other assignments of error were one to the admission of the foregoing evidence, and one to the charge of the court, which are the only assignments passed upon by this court.
JE. S. Qolden, for plaintiff in error.
The question raised upon this record may be stated thus: Has the assignee of a judgment, lost through the admitted negligence of the attorney who entered it of record, no remedy as against the attorney? Eor if the right, of action or remedy against the attorney is at the courtesy of the assignor, who has received his money from the assignee without any guarantee and has 'therefore no interest in the matter, or, what may be the case, is under the control of the attorney whose conduct -produced the loss, practically the assignee is without remedy.
The ordinary rule is that the assignment of a debt carries with it all the remedies which the assignor has for its collection, and it will scarcely admit of a doubt that the assignor has a remedy against the attorney through whose negligence the debt failed of collection from the original debtor.
The idea that the action of the assignee was in tort apparently controlled the court below. It is true the action of the attorney is a tort in the sense of a wrongful act; the tort is, however, not *37actual but constructive, springing as it does from a violation of the contract relation existing between attorney and client.
Though the action may be in form as for a tort, yet if the subject of it be based on contract, the suit will be attended by all the incidents of an action ex contractu, the most important of which incidents certainly is, in this case, the transfer of the assignor’s remedy against the attorney to the assignee of the debt: Livingston v. Cox, 6 Barr 362 ; Wilt v. Welsh, 6 Watts 10.
J. Gfiljpin and J. V. Painter, for defendant in error.
The summons here is in case, the action for negligence; the declaration is not based on contract, nor does it set forth any special contract between Morris and McCulloch; it has none of the necessary incidents of a contract; the plea is not guilty, so that in its inception and all necessary steps to issue, it is an action of tort, and must be governed by the rules governing actions of tort. It is contended therefore that the rule of Livingstone v. Cox, 6 Barr 362, does not apply to this case.
A personal right of action for a tort is not assignable, 2 Tr. & H. Pract. 149, Clowes v. Hawley, 12 Johns 484; North v. Turner, 9 S. & R. 244; McFadden v. Johnson, 22 P. F. Smith 335; Baldwin v. Cash, 7 W. & S. 425; Gardner v. Adams, 12 Wend. 297; Pulver v. Harris, 52 N. Y. 73; s. c. 62 Barb. 500; Mackey v. Mackey, 43 Barb. 58; Zabriskie v. Smith, 13 N. Y. 322.