Page:Federal Reporter, 1st Series, Volume 10.djvu/622

 «10 ���FEBEBAL BEFOBTEB. ���alleged that representations were made by the defendants Edward Matthews and Virginia B. Matthews, at the time the bonds were deposited, that Edward was the owner, but that afterwards, and prier to October 1, 1879, false and fraudulent representations were made by them to Nathan Matthews, his assignees, and to WilUams, that Virginia, and not iTathan, was the owner; and that, being deceived by tliese false statements, and by other false repre- sentations made by Edward respecting the value of the coupons due on said bonds, Nathan, with the asseut of his assignees and Williams, on October 1, 1879, entered into an agreement with Edward whereby the bonds were sur- rendered to Virginia on the payment of a small part of their value. In con- sequence of this, Edward's notes were left unpaid, and the assignees greatly damaged. iufts, as the purchaser from Brooks of all rights of action belong- ing to the assignees, now brings this suit for deceit in the matter of the sur- render of these bonds, allegiug damages to the amount of $300,000. �We do not see, under the authorities, how an action of this char- acter can be transf erred by assignaient ; but, even if transferable, we very much doubt if the plaintiii could bring suit in his own name. It bas been held that where the laws of a state do not permit the assignee of a chose in action to sue in his own name, a persoii who purchases such chose in action from the assignee in bankruptcycan- not maintain an action thereon in bis own name; and, further, that the lex fori governs the form of remedy. There the contract was made in New York, and suit was brought in Massachusetts. Lea^h T. Greene, 12 N. B. R. 376. But neither the common law nor the statutes of Ehode Island nor the bankrupt act seem to warrant us in holding this action assignable. As a rule, only such actions are assignable as survive the death of a person, and would go to his executer or administrator. Where there is nothing such as would survive the death of a person, there is nothing capable of being trans- ferred. Gomegys v. Vasse, 1 Pet. 193, 213; Billard v. Collins, 25 Gratt. 343. �At common law, personal actions died with the person, — actio per- sonalis moritur cum persona; and this has been construed tO mean all torts where the action is in form ex delicto for the recovery of dam- ages, and the plea not guilty. 1 Saund. 216a, note 1; Henshaw v. Miller, 17 How. 212, 219. �While the statute of 4 Edw. III. c. 7, by a liberal construction en- larged the number of actions which survived, it was never held to extend to actions of assault apd battery, false imprisonment, slander, deceit, and the like. Williams, Bx'rs, (6th. Am. Ed.) 870, (793.) �The number of actions which survive have been greatly increased by statute in most of the states. Under statutes quite similar to those ��� �