dissenting.
Having been a member of the department of the commission which formulated the former opinion in this case, I still adhere to that opinion, and therefore dissent, but without writing a dissenting opinion.
Not®. — Assignment of Tortious Rights of Action. — In distinguishing’ between tortious acts which are assignable and those which are not, the test ordinarily is: Will the right of action survive to the personal representatives of the assignor? A right of action for assault and battery, breach of promise, false impi’isonment, malicious prosecution .or slander — in which the damages consist in mental or corporal anguish — is not assignable. But a right of action for conversion, trespass, or case for negligence resulting in the injury or destruction of property, is assignable, for example:
A mere right of action for fraud unconnected with any property which has a legal existence and value, is not assignable. Archer v. Freeman, 124 Cal., 528.
A right of action for official fees illegally exacted, is assignable. Stewart v. Balderston, 10 Kan., 131.
Where an insolvent debtor makes an assignment for the benefit of his creditors, the assignee can not maintain an action against an attaching creditor and the sheriff for injury to the business credit and reputation of his assignor as a result of the alleged malicious levy of a writ of attachment prior to the assignment. Slauson v. Schwabacher, 4 Wash. [St.], 783.
A right to recover damages for a personal tort — false imprisonment — is a mere personal right and is not assignable, even after verdict and before judgment. Hunt v. Conrad, 47 Minn., 557.
A cause of action for fees collected in favor of a de-jure officer against a de-facto officer who wrongfully holds over, is assignable. Platt v. Stout, 14 Abb. Pr., o. s., 178.
Unearned Fees and Salaries of Public Officers, Are Not Assignable; and This, by the Great Weight of Authority, in the Absence of Any Statute.— The public service is protected by protecting those engaged in pel’-*279forming public duties, aud this, uot ,on the ground of their private interest, but upon that of the necessity of securing the efficiency of the public service, by seeing to it that the funds for its maintenance should be received by those who perform the work, at such periods as the law has appointed for their payment. The particular cases presented were of the assignment of a month’s salary in advance; and the claims were sold at ten per cent, discount. This being a sale and not a loan, presented no question of usury, but was held void as ag-ainst public policy. Opinion by Johnson, J., concurred in by all the judges, including Sanford E. Church and Charles J. Eolger. Bliss v. Lawrence, 58 N. Y., 442; Schloss v. Hewlett, 81 Ala., 266; Bangs v. Dunn, 66 Cal., 72; Ellis v. State, 4 Ind., 1; Holt v. Thurman, 63 S. W. Rep. [Ky., 1901], 280. Contra: State v. Hastings,* 15 Wis.; *75; Brackett v. Blake, 7 Met. [Mass.], 335; Mulhall v. Quinn, 1 Gray [Mass.], 105; Macomber v. Doane, 2 Allen [Mass.], 541. Assignment held good as to unearned salary of school-teacher. Johnson v. Pacer,† 78 Ill., 143. The assignment of unearned official salaries, is forbidden by federal statute and in England. Some American courts who have cited English cases-do not appear to have been advised of the latter fact. —W. E. B.
By a divided court.
This case arose under an attempt to garnishee the wages .of a school-teacher. The teacher had given an order for unearned salary to a‘preferred creditor; the board of directors accepted the order on condition of the completion of the contract. Another creditor brought the garnishment proceeding. Assig-nment held valid. —W. E. B.