The Law RELATING TO CHOSES IN ACTION. Book I. CHOSES IN ACTION DESCRIBED. La CHAPTER I. THE NATURE OF CHOSES IN ACTION. In the recent important case of Colonial Bank v. Whinney (a), Fry, L.J., said: "According to my view of the English law, all personal things are either in possession or in action. The law knows no tertium quid between the two." And in the same case Lindley, L.J., said: "It is difficult to find out the exact meaning of the expression chose in action. One has to look back and see what the interpretation to be put upon these words is, and it is impossible, I think, to look into the authorities upon this subject without seeing that the meaning attributed to the expression has been expanded from time to time. So far as I can make out, the words chose in action' were originally used to denote a mere right to sue for a debt or for damages. I take that not to be so much a definition as a description, and, as I understand it, the original idea was that a chose in action was not property of a particular class, 6 (a) 30 Ch. D. 285. but was no property at all. . . . . It was not that property was divided into choses in action and choses in possession, but that a chose in action was only a right to sue as distinguished from property." After deducing authorities in support of this statement, the learned judge continues: "The term chose in action has, then, no doubt, whatever its original meaning may have been, come to be used as denoting a certain class of property. There being no word to denote incorporeal personal property, the meaning of the expression choses in action was gradually extended for the purpose of denoting it. . . . . No little confusion has arisen from this extended use of the expression chose in action, and where these words are used it is necessary to be careful in ascertaining whether they are used in the wide sense of incorporeal personal property, or in the narrow and strict sense of a right to sue for a debt or damages. Though debts, money in the funds, shares in companies, copyrights and patents, are all incorporeal personal property, they are so different in their nature and legal incidents that care must be taken not to be misled by giving them all a common name which conceals their differences. We all know that our law has not been put into a very scientific shape, and there is often considerable difficulty in determining in what sense a particular expression, such as choses in action, is used" (b). And, indeed, it may be said here, in passing, that this difficulty is one which extends not only to the whole law of contract (c), but to English law in general, owing to the irregular way in which it has grown; and, in connection with the particular subject of choses in action, this difficulty has been enhanced by misconception of the combination of words, and by the further fact that until within most recent times choses in action (b) 30 Ch. D. 282-284. (e) Pollock, Contracts, 704. have been regarded by writers rather as incident to some other branch of law than as a subject by themselves (d). The term chose in action has been interpreted in various ways, and has been employed to describe many kinds of proprietary interests differing very widely from one another in their nature. It has been used to denote :- (1) The right to obtain something not in possession (2) The property or some corporeal thing in regard to which the right is exerciseable. (3) A document evidencing a right, or title. (4) An interest in some fund or other property (or the document evidencing such an interest), the right to enjoy which, strictly speaking, is not legally enforceable at all. Such being the uses to which the term chose in action. has been applied, it may be well to cite here the main attempts which have been made to define, or to describe, the nature of choses in action. "Things in action, as a right or title of action that doth only depend in action, and things of that nature, as rights and titles of entry to any real or personal thing . . . are not grantable at all, but by way of release to the tenant of the land, &c., by which means it may be extinguished; but this may not be neither without deed. . . . Things in action, as debts and the like" (e). "Chose in action is incorporeal and only in right as a right or title of entry into land. An action of debt on an obligation, or an annuity, or for rent, or action of covenant on a covenant, or an assise upon a disseisin, ejectione firmae upon an ejectment, trespass for goods taken away, beating and the like. Some also of (d) L. Q. R. x. 303. (e) Shep. Touch. 2nd ed. [1648], pp. 231, 430. ... them are said to be personal, as debt and the like; some real, as rights and titles to land, either of entry or action; or mixed, as was wardship" (ƒ). "Chose in action is, when a man hath cause, or may bring an action for some duty due to him; as an action for debt upon an obligation, annuity, or rent, action of covenant or ward, trespass of goods taken away, beating, or such like; and because they are things whereof a man is not possessed, but for recovery of them is driven to his action, they are called things in action" (g). And "Chose in action is a thing incorporeal, and only a right, as an annuity, obligation for debt, &c. generally all causes of suit for any debt, duty, or wrong, are to be accounted choses in action. When a man may bring an action for some duty, viz., debt upon bond, or for rent; or action of covenant, or trespass for goods taken away, or such like; these are choses in action. And as they are things whereof a person is not possessed, but is put to his action for recovery of them, they are therefore called choses in action. . . . And a condition and power of re-entry into land upon a feoffment, gift or grant, before the performance of the condition, is of the nature of a chose in action. If one have an advowson, when the church becomes void the presentation is but as a chose in action. Where a man hath a judgment against another for money, or a statute, these are choses in action. . . . A possibility of an interest or estate in a term for years is near to a chose in action" (h). "Property, in chattels personal, may be either in possession, which is where a man hath not only the right to enjoy, but hath the actual enjoyment of, the thing; or else it is in action: where a man hath only a bare right, without any occupation or enjoyment" (i). (ƒ) Shepp. Abr. [1675], tit. Choses in Action. (9) Termes de la Ley [1708], tit. Choses in Action. (h) Jacob's Law Dict. [1729]. (i) 2 Bl. Comm. [1765-1769], 389. "Property in action, or such where a man hath not the occupation, but merely a bare right to occupy the thing in question; the possession whereof may however be recovered by a suit or action at law: from whence the thing so recoverable is called a thing, or chose in action. Thus money due on a bond is a chose in action; for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law. If a man promises, or covenants with me, to do any act, and fails in it, whereby I suffer damage, the recompense for this damage is a chose in action; for though a right to some recompense vests in me at the time of the damage done, yet what and how large such recompense shall be, can only be ascertained by verdict; and the possession can only be given me by legal judgment and execution. In the former of these cases the student will observe, that the property, or right of action, depends upon an express contract or obligation to pay a stated sum: and in the latter it depends upon an implied contract, that if the covenantor does not perform the act he engaged to do, he shall pay me the damages I sustain by this breach of covenant. And hence it may be collected, that all property in action depends entirely upon contracts, either express or implied; which are the only regular means of acquiring a chose in action. Upon all contracts or promises, either express or implied, and the infinite variety of cases into which they are and may be spun out, the law gives an action of some sort or other to the party injured in case of non-performance; to compel the wrongdoer to do justice to the party with whom he has contracted, and, on failure of performing the identical thing he engaged to do, to render a satisfaction equivalent to the damage sustained. But while the thing, or its equivalent, remains in suspense, and the injured party has only the right and not the occupation, it is called a chose in action; being |