delivered the opinion Or the court:
Where the defendant to a bill in chancery has been defaulted and a decree pro confesso entered, that decree concludes the party only-as to the averments of the bill, and the sufficiency of the bill itself, and the averments contained in it, may be attacked as not justifying the decree. (Gault v. Hoagland, 25 Ill. 241.) The material inquiry therefore is, first, whether a right of action for personal injuries is assignable; and second, whether a contract by which the control of the party in interest over litigation carried on in his name or behalf is prevented is void.
By the' common law, actions arising out of torts did not, in general, survive. The statute of this State has materially changed the rule with reference to actions which survive, and it is now the general rule in this country that causes of action arising from torts to property, real or personal, or injuries to the decedent’s estate by which its value is diminished, survive and go to the executor and are assets in his hands, and such causes of action are assignable. But it is usually held that torts to the person or character, when the injury or damag'e is confined to the body or the feelings, and those contracts the breach of which produces direct injury and damage, both mentally and to the person, are, so long as they are executory, not assignable. The controversy here is whether an action for personal injuries is assignable.
Numerous authorities are referred to by counsel for appellee which lay down the rule that in many cases of torts to property causes of action may be assigned, and of those cases we cite the following: In Jackson v. Daggett, 31 N. Y. Sup. 204, an action against a sheriff for failure to return an execution was held assignable. Dinney v. Foy, 38 Barb. 18, was an action against a sheriff for neglecting to arrest a debtor upon an execution against his person, and the cause of action was held assignable. Grant v. Ludlow, 8 Ohio St. 51, was a bill of review to set hside a decree based on a commercial transaction. The case was relative to a mortgage, and the point made was, that the transaction was in the nature of a tort and not transferable to executors or administrators, and died with the person. The court held that it survived—that the mortgage was assignable. Robinson v. Weeks, 6 How. Pr. 161, was an action for taking and converting personal property, brought by an assignee, and it was held that the assignment was good. Hall v. Cincinnati Railroad Co. 1 Disney, 58, was a case that decides that under the Ohio code an assignee of a claim for damages resulting from injuries to personal or real estate may bring an action'in his own name. More v. Massini, 32 Cal. 590, was a case wherein it was held that a claim for damage caused by a trespass on land is assignable. Weire v. Davenport, 11 Iowa, 49, was a case wherein it was held that a damage to realty is assignable. National Exchange Bank v. McLoon, 73 Me. 498, was a case which held good an assignment by an heir of the owner of a ship destroyed by the “Alabama,” of his claim against the United States for such destruction. Fried v. New York Central Railroad Co. 43 N. Y. Sup. 1, holds that the right of action for carelessly and negligently setting fire to and burning- up grass, fences and hay upon a farm is assignable. Vimont v. Chicago and Northwestern Railway Co. 64 Iowa, 513, was a case in which there was an assignment of the right of action for personal injuries to a resident of Iowa by a non-resident, and the question arose as to the validity of the assignment, on a motion to transfer the case to the United States court, and the court held such assignment was good, on the strength of Gray v. McAllen, 4 Iowa, 497. Zagbaum v. Parker, 66 Barb. 341, was a case of false imprisonment, where there was an agreement to secure services by the assignment of a verdict, and the agreement was held good. This is under the New York code, under which champerty and maintenance do not exist. Brady v. Whitney, 24 Mich. 154, was an action in trover brought by a purchaser of a melodeon after the conversion, and the question was whether this sale constituted an assignment of the right to sue, and the court held that a right of action in trover is assignable. Grant v. Ellis, 26 Mich. 201, was a case holding that an action in trover for converting timber is assignable. Finn v. Corbit, 36 Mich. 318, was a case holding that a right of action for trespass to property is assignable. Final v. Backus, 18 Mich. 218, was a case in which the court holds that a right of action for conversion of logs is assignable. In Brackett v. Griswold, 103 N. Y. 425, the question involved was whether a cause of action growing out of a false annual report by a trustee, affecting a creditor and giving him an action under the statute, died with the creditor, and it was held that it did. This question was joined with a charge of conspiracy to cheat and defraud, and it was held this affected a property right, and survived. Stewart v. Houston and Texas Central Railway Co. 62 Tex. 246, was a case in which it was held that an unliquidated claim for personal injury cannot be assigned by the party injured, in Texas. The court approves Railroad Co. v. Freeman, 57 Tex. 156, and holds, as there was no survival, there could be no assignment of the action for personal injuries. In the Freeman case, supra, the question involved was, whether a claim against a railroad company for killing and injuring live stock could be assigned in equity, so as to enable the assignee to bring suit in his own name, and the court held that personal torts are not assignable, but that claims growing' out of and adhering to property may be assigned. In Choteau v. Boughton, 100 Mo. 406, the question involved was, whether a right of action for trespass to realty was assignable; and the court held that it was, and followed the case of Schneider v. Wabash, St. Louis and Pacific Railroad Co. 86 Mo. 613. This latter case was an action brought against a railroad company for killing a hog which had strayed through a defective fence, and it was held that such a right of action might be assigned, as it would survive the death of the owner under the code.
All these cases—and many others might be cited— sustain the principle that causes of action for injuries to property, real or personal, by which an estate is diminished, are generally assignable. On grounds of public policy the sale or assignment of actions for injuries to the person are void. The law will not consider the injuries of a citizen, whereby he is injured iu his person, to be, as a cause of action, a commodity of sale. On other grounds assignability is not legal.
In the discussion of the question of assignability of causes of action for torts, courts have usually based their decisions on the theory that where a cause of action survived it was assignable. Is that the sole test? Bispham, in his Principles of Equity, (pp. 218, 219,) states: “So, too, equity will not recognize assignments of certain species of property which it would be against the policy of the law to allow the owners to part with. These are, pensions given as rewards for extraordinary services, pay or half pay in the army, the salaries of judges, and other revenues and emoluments of a kindred character, which reasons of State require should remain always for the benefit of the person to whom they were originally given. * * * Yet in all these cases any balance unpaid at the time of death would survive to the personal representative. But the right of assignment is precluded on principles of public policy.”
Pomeroy, in his work on Equity Jurisprudence, (sec. 1275,) says: “It becomes important, then, in fixing the scope of the equity jurisdiction, to determine what things in action may thus be legally assigned. The following criterion is universally adopted: All things in action which survive and pass to the personal representatives of a decedent creditor as assets, or continue as liabilities against the representatives of a decedent debtor, are, in general, thus assignable; all which do not thus survive, but which die with the person of the creditor or of the debtor, are not assignable. The first of these classes, according to the doctrine prevailing throughout the United States, includes all claims arising from contract, express or implied, with certain well defined exceptions, and those arising from torts to real or personal property, and from frauds, deceits and other wrongs, whereby an estate, real or personal, is injured, diminished or damaged. The second class embraces all torts to the person or character where the injury and damage are confined to the body and the feelings, and also those contracts, often implied, the breach of which produces only direct injury and damage, bodily or mental, to the person, such as promises to marry, injuries done by the want of skill of a medical practitioner contrary to his implied undertaking, and the like, and also those contracts, so long as they are executory, which stipulate solely for the special personal services, skill or knowledge of a contracting party.”
Here is a distinction clearly drawn between injuries to property and injuries to the person. This distinction rests on a sound principle. If a person receives injuries to his person through negligence of another, by our statute (sec. 123, chap. 3,) the action therefor survives. By chapter 70, where death results from such injuries caused by such negligence of another the action still survives, but is brought for the exclusive benefit of the widow and next of kin. The administrator cannot recover damages for the estate and at the same time recover for the exclusive benefit of the widow. Statutes like chapter 70 are in force in most of the States. May a person injured assign the cause of action immediately after his injury, and thus, in case of his death from that injury, legally bar a recovery by the administrator for the exclusive benefit of the widow and next of kin? The purpose of chapter 70 is to benefit the widow and next of kin. If an assignment on the basis of the survival of the action were the sole test, then in the case mentioned the assignment would be valid. But the very purpose of the survival, as created by the statute, is for the benefit of the widow and next of kin, which purpose the law will not permit to be defeated. Whether the action be for assault and battery or for injuries caused by the negligence of another, still the same rule obtains, and the action is included in the term actions for injuries to the person. The possible result of the assignment of such an action would be that the purpose of the law might be defeated. Courts have with but one exception steadily held that an action for injuries to the body is not assignable. These actions did not survive at common law, and statutes providing for such survival have had their birth since the passage of Lord Campbell’s act, in 1852, which, by chapter 70 of our Revised Statutes, is substantially adopted. If such actions are held assignable on the sole ground of survival, then an assignee in bankruptcy or for the benefit of creditors would take the cause of action.
This principle that actions for personal injuries are not assignable is well sustained by authority. In Rice v. Stone, 1 Allen, 568, it was held that an assignment of a claim for personal injuries is void, although made after verdict but before judgment in an action to recover damages for such injury. The court say: “Such claims were not assignable at common law. On the contrary, a possibility, right of entry, thing of action, cause of suit or title for condition broken, could not be granted or assigned over at common law. But this ancient doctrine has been greatly relaxed. Commercial paper was first made assignable to meet the necessities of commerce and trade. Courts of equity also interfered to protect assignments of various choses in action, and after a while courts of law recognized the validity of such assignments, and protected them by allowing the assignee to use the name of the assignor for enforcing the claim assigned, and at the present day claims for property and for torts done to property are generally to be regarded as assignable, especially in bankruptcy and insolvency. There may be exceptions to this doctrine, but they need not be discussed here. But in respect to all claims for personal injuries, the questions put by Lord Abinger in Howard v. Crowther, 8 M. & W. 603, are applicable: ‘Has it ever been contended that the assignees of a bankrupt can recover for his wife’s adultery, or for an assault? How can they represent his aggravated feelings?’ And we may add the broader inquiry, has any court of law or equity ever sanctioned a claim by an assignee to compensation for wounded feelings, injured reputation or bodily pain suffered by an assignor? There were two principal reasons assigned why the assignments above mentioned were held to be invalid at common law. One was to avoid maintenance. In early times maintenance was regarded as an evil, principally because it would enable the rich and powerful to oppress the poor. This reason has in modern times lost much, but not the whole, of its force. It would still be in the power of litigious persons, whether rich or poor, to harass and annoy others if they were allowed to purchase claims for pain and sufferings and prosecute them in courts as assignees, and as there are no counterbalancing reasons in favor of such purchases, growing out of the convenience of business, there is no good ground for a change of the law in respect to such claims. The other reason is a principle of law applicable to all assignments, that they are void unless the assignor has either actually or potentially the thing which he attempts to assign. A man cannot grant or charge that which he has not. * * * Most of the cases in which the right to assign this class of claims has been discussed have been assignments under the statutes of bankruptcy or insolvency. Much of the discussion has therefore related to the construction of these statutes, but the nature of the claims has also been regarded as an objection to their being assignable. In some cases the question has been discussed without reference to such statutes. In Prosser v. Edmunds, 1 Younge & Coll. 481, it was said that a bare right to file a bill in equity for fraud was not assignable. Lord Chief Baron Lyndhurst remarked that courts of equity had relaxed the ancient rule as to the assignment of choses in action, ‘but only in the case where something more than a mere,right to litigate has been assigned.’ This constitutes a very important limitation.” This case was followed in Linton v. Hurley, 104 Mass. 353.
In Coughlin v. New York Central and Hudson River Railroad Co. 71 N. Y. 446, one having a claim against a railroad company for personal injuries accepted an offer from certain attorneys to take the claim for collection and divide the recovery. Afterward the railroad company, with notice of the attorneys’ interest in the cause of action, settled with the claimant and secured a release. In holding* that the release was a bar to the action for negligence, and that the attorneys could not demand that the action proceed so that they might have the benefit of their agreement, the court say: “So if the cause of action before judgment be in its nature assignable, the owner of it may assign, and, by agreement, create legal and equitable interests therein, and such agreements may now be made with his attorneys as well as with other persons, and when such interests have been created and notice given of them, they must be respected. But * * * when the cause of action is, like this, such as by its nature is not assignable, the party owning it cannot, by any agreement, give his attorney or other person any interest therein,”—citing People v. Tioga Common Pleas, 19 Wend., 73, and Pulver v. Harris, 62 Barb. 500. To the same effect is Chicago and Alton Railroad Co. v. Maher, 91 Ill. 312.
The only exception to this rule is the case of Vimont v. Chicago and Northwestern Railway Co. 69 Iowa, 296, which has been followed by other cases in that State. We do not think the reasoning on which these decisions are based is sound, and we decline to follow them.
The second proposition to be determined is, is a contract by which the person in whose name the action is brought and to whom it belongs, restricted from comproraising or settling such a claim because of a contract to that effect? In other words, is such a contract valid and binding? The law does not discourage settlements in cases for personal injuries. Whether a cause of action exists, and if so, its nature and amount, are facts always involved in uncertainty, and a defendant has a right to buy his peace. The plaintiff has a right to compromise, and avoid the anxiety resulting" from a cause pending to which he is a party. Any contract whereby a client is prevented from settling or discontinuing his suit is void, as such agreement would foster and encourag'e litigation. Lewis v. Lewis, 15 Ohio, 715; Elwood v. Wilson, 21 Iowa, 523; Foster v. Jacks, 4 Wall. 334; Greenhood on Public Policy, 474; Boardman v. Thompson, 25 Iowa, 487; Huber v. Johnson, (Minn.) 70 N. W. Rep. 805.
We will not extend this opinion by a discussion of other questions raised. The decree of the Superior Court of Cook county and the judgment of the Appellate Court for the First District are each reversed and the cause is remanded, with directions to dismiss the bill.
Reversed and remanded,.