HARVARD LAW REVIEW VOL. XXXIII JUNE, 1920 No. 8 THE HISTORY OF THE TREATMENT OF CHOSES IN ACTION BY THE COMMON LAW "ALL personal things are either in possession or action. The 1 law knows no tertium quid between the two." It follows from this that the category of choses in action is in English law enormously wide, and that it can only be defined in very general terms. This is clear from the terms of the definition given by Channel, J., in Torkington v. Magee,2 which is generally accepted as correct. It runs as follows: "Chose in action' is a known legal expression used to describe all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession." In fact the list of choses in action known to English law includes a large number of things which differ widely from one another in their essential characteristics.3 In its primary sense the term "chose in action" includes all rights which are enforceable by action - rights to debts of all kinds, and rights of action on a contract or a right to damages for its breach; rights 1 Colonial Bank v. Whinney, 30 Ch. D. 261, 285 (1885), per Fry, L. J., whose dissenting judgment was upheld by the House of Lords, 11 A. C. 426 (1886). 2 [1902] 2 K. B. 427, 430. For an exhaustive list see 4 HALSBURY, LAWS OF ENGLAND, 362-365; and for a discussion of the meaning of the term, and an account of the salient features of some of these varieties of choses in action, see the following articles in the LAW QUARTERLY REVIEW: H. W. Elphinstone, "What is a Chose in Action?" IX, 311; T. C. Williams, "Is a Right of Action in Tort a Chose in Action?" X, 143; Charles Sweet, "Choses in Action," X, 303; Spencer Brodhurst, "Is Copyright a Chose in Action?" XI, 64; T. C. Williams, "Property, Things in Action and Copyright," XI, 223; Charles Sweet, "Choses in Action," XI, 238. arising by reason of the commission of tort or other wrong; and rights to recover the ownership or possession of property real or personal. It was extended to cover the documents, such as bonds, which evidenced or proved the existence of such rights of action. This led to the inclusion in this class of things of such instruments as bills, notes, cheques, shares in companies, stock in the public funds, bills of lading, and policies of insurance. But many of these documents were in effect documents of title to what was in substance an incorporeal right of property. Hence it was not difficult to include in this category things which were even more obviously property of an incorporeal type, such as patent rights and copyrights. Further accessions to this long list were made by the peculiar division of English law into common law and equity. Uses, trusts, and other equitable interests in property, though regarded by equity as conferring proprietary rights analogous to the rights recognised by law in hereditaments or in chattels, were regarded by the common law as being merely choses in action. The first question, therefore, which must be answered by any one who is writing a history of choses in action is the question how English law came to include this great mass of miscellaneous rights under this one head. It is clear that the diversity of the things included under the category of choses in action must lead to a diversity in the legal incidents of various classes of choses in action. In fact their legal incidents do differ very widely; for, being different in themselves, they have necessarily been treated differently both by the courts and by the legislature. It is impossible to treat fully of the law of choses in action in general; and the various classes of choses in action are usually treated, not under this one general category, but under the separate branches of law to which they more properly belong. If we want to know the law, for instance, as to bills and notes, or shares, or copyright, or patents, we should not think of looking for it in a treatise on choses in action, but rather in books on mercantile law, company law, or in special treatises devoted to these particular things. Nevertheless the fact that all these things are classed as choses in action has had some influence on the shaping of their legal incidents. The original meaning of a chose in action—a right to be asserted by an action — has never been wholly lost sight of, and has had some influence even upon those classes of choses in action which differ most widely from the original type. In spite of all differences, they are choses in action; and, when questions have arisen which have not been specially provided for by the legislature or otherwise, it has been necessary in order to solve them to have recourse to the original conception of a chose in action. Here, as in other branches of the law, it has been necessary to seek authority on new problems from old cases, which were decided at a time when the law knew only the original type of choses in action. Hence the fact that all these things are classed as choses in action has left its mark upon the law; and, partly from this cause, partly by reason of the divergencies between the different classes of choses in action created from time to time by the courts and the legislature, the law upon many points connected with this subject was long, and still is, to some extent, confused, inconvenient, and uncertain. If, therefore, we would understand the history of the law upon this topic, we must consider the legal incidents of the original type of choses in action, and the modifications of those incidents made from time to time both in the original and the later types. Therefore I shall deal firstly with the growth of the different varieties of choses in action; and, secondly, with the legal incidents of these different varieties. THE GROWTH OF THE DIFFERENT VARIETIES OF CHOSES IN ACTION In dealing with this subject it will be necessary to say something of the meaning which came to be attached to the phrase "chose in action" in the medieval common law. We shall see that during that period two tendencies are observable. In the first place, the term "chose in action" gradually becomes a technical term, and in the second place its meaning tends to expand. When these mediaval developments have been dealt with we shall be in a position to trace the history of the still greater expansion of its meaning which took place in the course of the sixteenth, seventeenth, and eighteenth centuries, firstly and mainly, under the exigencies of the growth of commercial law; and secondly, by reason of the growth of a separate and definite system of equity. A very good illustration is afforded by the case of the Colonial Bank v. Whinney, 30 Ch. D. 261 (1885), 11 A. C. 426 (1880). (1) The Medieval Development Bracton classes "actiones" amongst incorporeal things. These "actiones," he tells us, are distinguishable from other incorporeal things, such as rents or advowsons, in that they are not recognized as completely the property of a deceased person. He cannot leave them by his will till they have been put in suit and judgment got upon them. In fact these "actiones" differ widely from the other incorporeal things known to the medieval common law; for these incorporeal things were regarded as property and assimilated to corporeal things." The "realism" of the medieval common law made for the multiplication of these incorporeal things, and classed under this head such things as annuities and corrodies, which in our modern law would be created by contract, and would therefore be classed as choses in action. But mere rights of action were not touched by this realism. An action necessarily involves a definite plaintiff and a definite defendant. The right of action, therefore, is an essentially personal right of one person against another; and it is for this reason that they could not, as Bracton explained, be left by will. This conception of a right of action is reproduced by Fleta, who classes an "actio" with such inalienable things as "res sacra," "res coronae," and a "liber homo "; 10 and it became a recognised principle of the common law. Thus in Edward III's reign it is said that, though the lord of a villein may take an incorporeal thing like a rent which has been granted to the villein, and of which the villein is seised, "that which remains in action to the villein, as for instance the right under an obligation made to him or under a covenant of warranty, the lord cannot take." "1 9 "Incorporales vero res sunt, quae tangi non possunt, qualia sunt ea, quae in jure consistunt sicut haercditas, usus fructus, advocationes ecclesiarum, obligationes, et actiones, et hujus modi," f. Iob. • “Item quaero, an testator legare possit actiones suas? Et verum est, quod non de debitis, quae in vita testatoris convicta non fuerunt nec recognita, sed hujusmodi actiones competunt haeredibus. Cum autem convicta sint et recognita, tunc sunt quasi in bonis testatoris, et competunt executoribus in foro ecclesiastico," ff. 61a, 61b; to the same effect f. 407b, where two cases are cited. Fleta repeats the same rule. 2 FLETA, 57, §§ 13, 14. 7 2 HOLDSWORTH, HISTORY OF ENGLISH LAW, 301; 3 Ibid., 85-88. 8 2 Ibid., 300-301; 3 Ibid., 126–127. • Supra, note 6. 10 "Actio autem, res sacra, res coronae, liber homo, jurisdictio, pax, muri et portae civitatis, a nullo dari debent, ut valida sit donatio," 3 FLETA, 6, § 2. 11 "Item dit fuit, que ceo que est en possession de villein come rent grante al villein de que il est seisi, le Seignior le puit happer, mes ceo que demurt en accion al villein Thus it would seem that in its earliest sense the term "choses in action" meant, as Williams has said, 12" things in respect of which a man had no actual possession or enjoyment, but a mere right enforceable by action." It is obvious that the number and variety of these rights, and the manner in which they are developed by the law, must to a large extent depend on the law of procedure. The law of actions. determines necessarily the conditions under which a right is asserted by action. Now in the medieval common law the division of actions into real and personal was fundamental. It is to be expected, therefore, that rights which fell within the sphere of the one class of actions would be treated somewhat differently from rights which fell within the other class. This is to some extent the case. In fact it is probable that originally the term "chose in action' was applied to a right to bring a personal action. Bracton, following Azo, had laid it down that actions spring chiefly from obligations.13 He thus associated the term "action" mainly with the personal action. Apparently this idea took root; for we can see from the case just cited from the Book of Assizes,14 and from other cases in later Year Books,15 that the phrase "chose in action" is used mainly in connection with rights arising under some one of the personal actions, such as debt, detinue, or trespass. It is not much before the sixteenth century that it is extended to cover rights arising under the real actions. It is then sometimes called a "chose in action real," a phrase which points to the fact that chose in action was regarded as primarily connected with the personal actions.16 Even then its connection with the personal actions lived = le Seignior n'avera pas. Come si obligation de dette soit fait al villein, ou covenant ou garrantie fait au villein, de ceo le Seignior n'avera nul avantage," 22 Ass., pl. 37 = BROOKE, ABRIDGMENT, Chose in Action, pl. 8. 12 PERSONAL PROPERTY, 17 ed., 29. 13 2 HOLDSWORTH, HISTORY OF ENGLISH LAW, 219–220. 14 Supra, note II. 15 See, e. g., Y. BB. 9 HEN. VI, Hil., pl. 7; 19 HEN. VI, Mich., pl. 100; 39 HEN. VI, Mich., pl. 36; 5 EDW. IV, Mich., pl. 22 — a right of action for ravishment of ward which was in the nature of Trespass, HOLDSWORTH, HISTORY OF ENGLISH LAW, 13, n.s. 16 Thus BROOKE, ABRIDGMENT, Chose in Action, pl. 14, abridging a case of 33 HEN. VIII, reports a case in which it was said that, "Si Abbe fuit disseisi de 4 acres de terre, le roy ne poct ceo graunt ouster devant entree fait per luy en ceo, pur ceo que est chose in accion reall, et nyent semble al chose in accion personall on mixt come dett garde et hujusmodi." Note that in Y. B. 2 HEN. VII, Mich., pl. 25, a grant by the crown of a right of re-entry and of a "chose qui gist en accion" are spoken of as |