#### Stedman *v*. Riddick.

From Gates.

A vendee or assignee cannot sue in his own name for property which the vendor or assignor, at the time of sale, could only recover by a suit.

*Troves*for the value of a negro girl. On the trial below, before Danieu, Judge, the plaintiff produced a bill of sale, executed by the defendant to one Voight, dated 28th *30July, 1824, and a bill of sale from *Voight*to himself, dated 4th August, 1824, for the negro girl.

The subscribing witness to the last bill of sale deposed, that at the time of its execution, *Voight*i nformed the plaintiff that he did not have possession of the negro, nor did he know that he should ever be able to get possession of her again: that the defendant, before the date of the bill of sale from *Voight,*sent for the negro, and took her into his possession, claiming her as his property, and that she remainéd in his possession until defendant sold her to a person who carried her out of the state.

The Court instructed the jury, that if the defendant had the adverse possession of the negro, when *Voight*sold her to the plaintiff, then the plaintiff could not recover: *Voight*had but a right of action, which, if purchased by the plaintiff, would not enable him to maintain an action at law. There was a verdict for the defendant; and on the appeal of the plaintiff, the case here stood upon a rule to show cause why there should not be a new trial.

*L.*Martin, for appellant. —

It is contended for the appellant, that this is not “ a chose in action.” A chose in action is what cannot be reduced to possession by the act of the party, but by action only. *Terms de la Ley.*

As between the parties or privies to a contract for a slave, it is sufficient that there be either a bill of sale, or delivery. See *Bateman*v. *Bateman,*(1 *Law Bepos.*85.)

In this case, there were neither creditors nor purchasers having conflicting claims; but the defendant was a privy in estate to the contract, and estopped by his deed to set up any claim to the slave, or to make himself an adverse possessor.

In the case of *Morgan*v. *Bradley,*(3 *Hawks*559. ) it is decided by this Court, that when the purchaser and vendor of the chattel are ignorant of any adverse possession, the right of action passes.

See also the case of *Nichols*v. *Bunting,*to show that there is no maintainance in the transaction. (3 *Hawks*86,)

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      *B. Sumner,*for appellee. —

The signification of the term, rights of action, or choses in action, is well settled and defined. It is not restricted merely to rights of action arising out of contracts, but it includes every case where a man hath the right to occupy, but hath not the occupation of a thing, but of which he may recover possession by a suit or action at law. (2 *Blackstone’s Com.*396, 397.)

‘Where/ therefore, ‘a person’s deeds or goods, and consequently negroes, are in the possession of another, and he can only be restored to them by suit, he has a chose in action precisely to the same extent as if his demand arose from a bond or promissory note.’ *Hynes*v. *Lewis’s exrs. (Taylor’s Rep.*49. 1 *Haywood’s Rep.*165.) These were precisely the circumstances of the case now before the Court: *Voight*claimed title to the negro, but *Reddick*had the adverse possession.. *Voight,*therefore, had but a chose in action; and this he could not transfer to the plaintiff, so as to give to him a right to sue in his own name; for at common law no chose in action is assignable; nothing that lieth in action, entry or reentry, *(Co. Litt.*214 *a.)*

And the Courts of Law have adhered so strictly to this principle of the common law, that they will not, even at this day, permit the assignee of a chose in action to maintain a suit in his own name; although the Courts of Equity will protect the assignment when for valuable consideration, if the assignee sue in the name of the assignor. (2 *Black. Com.*442. *Co. Litt.*211 *a.*266 *a.*1 *Bacon’s Mr.*157. 1 *Terra Report,*26.) And so the presiding Judge instructed the jury.

But it is objected to the charge of the Court, that the defendant is estopped by his bill of sale to *Vqight*to show that the plaintiff has not a sufficient title in law to enable him to recover. It would, perhaps, be difficult to find in any case an authority more precisely in point than the opinion delivered by Judge Henbersost in *Moore v.JVilr*
      *32
      *lis,*(2 *Hawks Rep.*558.) is in this case. The Judge there lays it down, “ that an estoppel is the conclusion of the truth, and is therefore not to be favored. But it is the facj. w{ijcij the party is thus precluded from controverting, not the law. The party cannot be *estopped*from showing the law.”

What right or interest the plaintiff acquired in the negro by his purchase from Voight, is inference of law, to be derived from the facts: the facts are, the defendant being in possession of the negro, *Voight*sold her to the plaintiff; the inference of law, that *Voight*had only a chose in action, which was not assignable; and this the defendant is not concluded by his deed from showing. But if the defendant’s bill of sale to *Voight*could have operated against him as an estoppel, yet the plaintiff has waived his right to avail himself of it; ‘for estoppels must be pleaded relying on the estoppel.’ (4 *Reports*53.) But in the case now before the Court, it does not appear that the es-toppel was either pleaded or relied upon at the trial. If the plaintiff does not rely on the estoppel, the Court and jury shall not be bound by it; but the jury may find the matter at large, and the Court shall give judgment accordingly. (1 *Salkeld*277. *Comyn’s Dig. “Estoppel,” 77.)*If the jury find the truth of the faet, the Court will give judgment accordingly with regard to the estoppel. *(Com. Dig. “Estop.”*81.) And though estoppels conclude parties to deeds to say the truth, yet jurors are not concluded who arc sworn *ad veritatem de et super prsemissis dicendam;*for they may find any thing that is out of the record. (4 *Rep.*53.) If a fact be stated in a deed which is not an essential part of it, the jury may find it different from what is stated, although the parties would be concluded to say otherwise: as if a deed hear date of a certain day and month, the jury is not estopped to say it was delivered on another day and month. (2 *Rep.*6.) And ao I apprehend, the jury may find that possession did not accompany the deed, although so expressed in the deed, *33or that the grantee had subsequently lost and the grantor acquired the possession, for the delivery of possession is not an essential part of the deed.

Tayxor, Chief Justice. —

At the time when *Voight*sold the slave to the plaintiff, the defendant had the possession, claiming it adversely against all the world; and'the question is. whether this chose in action is assignable, so as to enable the plaintiff to sue in his own name. For a chose in action conprehends specific chattels, as well as the right to recover a debt or damages, and extends to every sort of chattel property of which a man hath not the actual occupation, but a bare right to occupy it, and a suit in law is necessary to recover the possession, on account of an adversary claim.

The distinction in our law between choses in action and possession, corresponds with a similar one in the ci-, vil and canon laws, in which property in possession is termed *jus in re,*property in action, *jus ad rent.*It is a settled maxim of the common law, that no *chose in action*can be granted or assigned, founded upon the policy of preventing an increase' of law' suits, by restraining those who w'ould not assert their own rights, from transferring them to others of a more litigious disposition. The rule was doubtless more extensive than any mischief that could be apprehended; and it has accordingly been limited by various exceptions, as by the law merchant relative to bills of exchange, and in some instances *respondentia*bonds, by the acts making bonds and notes negotiable, and to the equitable sanction which is given to the assignment of choses in action for a valuable consideration. In many respects the rule at law is merely formal; for it is held that policies of insurance, and judgments, may be sued for by the assignee in the name of the original claimant. But I know of no authority for the position, that a vendee or assignee may sue for property in his owp name, which the vendor or assignor, at the time of sale, *34could only recover by suit. It seems to me, that much of the mischief which the rule aimed originally to prevent, would still arise under such a practice; and it is not call-e¿ for by the necessity of trade or commerce, or any of yjoge cauges which introduced the relaxations. The case of *Morgan*v. *Bradley,*decided at the last term, was determined on its own peculiar circumstances; the steer was turned out in the range a very short time before the sale, at which time botii the vendor and the vendee believed it to be still there, and when driven up by the defendant with his own cattle, he believed the steer to be one of them. The possession at that time proceeded from mistake, and could scarcely be considered adverse. The judgment must be affirmed.

The other Judges concurring,

Judgment aeítrmed.