Darcy v. Spivey , 57 Miss. 527 ( 1879 )

George, C. J.,

delivered the opinion of the court.

After the attachment was sued out, and a plea in abatement filed, contesting the ground upon which the attachment was based, the defendant was declared a bankrupt; and his assignee, Spivey, appeared and caused the suit to be revived in his name. The principal question for our consideration is as to the right of the assignee to recover damages on account of the right which existed in the bankrupt. The bankrupt’s right to damages resulted from the attachment-bond in which he was obligee, and which was his property. This was a contract, and the damages recoverable under it are such only as arise from a breach of the contract. The bond covered all the damages which the obligee, now bankrupt, might sustain, and which he had a right to recover under the statute. An action on the bond is an action ex contractu, and not in any sense ex delicto. The damages defined in the statute are sustained by a breach of the contract. The fact that, without the statute and the bond, some of the damages mentioned in the former would be recoverable in an action ex delicto, can make no difference, since by the statute and the bond they are ex contractu rights. That the act which is a legal breach of the contract in the bond, is a tort, is equally without force, for the damages are due by contract; the proof of the tort is but proof of a breach of the contract. The attachment bond was the property of the bankrupt, and went to the assignee under the Bankrupt Act, which vests in the latter “ all the estate, real and personal, of the bankrupt, with all his deeds, books and papers relating thereto.” The statute vested all the rights of the bankrupt in this bond in the assignee. If we hold that he can recover on it less than the bankrupt could, we deny him a right in the bond which the bankrupt had.

In placing the right of the assignee to recover in this case upon the ground of contract, we are not to be understood as holding that he may not recover for torts committed against the bankrupt. As to that we express no opinion, though there are several cases in which the right of the assignee to recover for torts has been held to pass to his assignee. Comegys v. Vasse, 1 Peters, 198; Phelps v. McDonald, 2 MacArthur, 375 ; Williamson v. Colcord, 13 B. R. 319.

There are errors in the charges to the jury; but they are even more favorable to the plaintiffs than the law warrants. Roach v. Brannon, ante, 490. No error is found in the record for which the judgment should be reversed. The objection that the verdict was excessive is removed by the remittitur, and the plaintiffs in error cannot complain of the erroneous instructions, because they did them no injury.

Judgment affirmed.