The defendant moved for a dis-JJlfesal of the complaint for insufficiency of proof.. On his points he states that there was no evidence of demand by the plaintiff after the assignment to him, and that there was no direct, evidence of value.
The complaint is simply a claim for damages for taking property of Lucy Sherwood, while it only avers an assignment by Lucy Sherwood to the plaintiff of the articles so taken. It sets up no assignment of a claim for damages for the taking.
' Under this complaint there could be no recovery for any trespass, except for that while Lucy Sherwood owned the property, and no such claim is assigned according to the pleadings. The objection ivas a much broader one than stated by the defendant’s counsel, for no cause of action was shown by the complaint to exist in Sherman. It neither averred an assignment by Lucy Sherwood of any claim for damages for the taking nor a demand of the property for the plaintiff after the assignment; one of which was necessary to give the-plaintiff a cause of action. The jeroof, therefore, of the plaintiff’s claim was insufficient when the motion was made. The Court of Appeals have lately held that a claim for damages for taking personal property is assignable. McKee v. Judd, 2 Kernan, 622. In that case the complaint' averred that the claim and demand for taking the property was assigned to the plaintiff, and not the title to the property merely.
*181For tbis reason we think the case must go back to the referee. If the plaintiff sees fit to move for an amendment of the pleadings, the objection may be remedied; but as the complaint now stands there can be no recovery in the plaintiff’s favor.
A more serious objection exists to any recovery in this case. After the wife’s marriage, she permitted this property to be transferred to the custody of the husband — the business to be carried on generally by him, and in his name, and the moneys used at his pleasure in renewing the stock from time to time. She may be considered as having appropriated this property to the use of the husband, and thereby exposed it to the claims of his creditors. She was present when her husband stated it had all been put in his possession by her as a part of the gene^l. stock, and did not dissent therefrom.
She should have made a specific claim for these articles, instead of claiming the whole stock, and more particularly so when the sheriff told her he did not wish to levy upon anything she had when she married. Sbe did not specify anything, but claimed the whole. Under the circumstances, it may well be said that she was estopped from afterwards setting up this claim. ■
I make these remarks rather as suggesting them'for the consideration of the referee, if the case shall again be brought to a hearing, than as necessary at the present time to the decision of this appeal.
■ There is also a difficulty as to the propriety of the assignment, by the wife, of this claim, without her husband. That a wife could not assign such a claim at common law without the privity and concurrence of her husband is undoubted, although courts of equity will sustain such conveyances when her intention so to do is made apparent. Whether this rule can be extended to a claim for damages for a tort, is a question not free from difficulty.
The report must be set aside, and cause referred back to the referee. Costs to abide the event.-.