(1) The Medieval Development

8

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." " 5 "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. 10b.

6 "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.

9 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.

de

"1 "Item dit fuit, que ceo que est en possession de villein come rent grante al villein il est seisi, le Seignior le puit happer, mes ceo que demurt en accion al villein

que

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 11.

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

on in the definition given by the "Termes de la Ley" 17 and in Blount's Law Dictionary; 18 and signs of the old idea appear even in Blackstone.19 Long before Blackstone's time, however, it was quite clear that it applied to rights to be asserted by real as well as by personal actions.20 The result of this development was to merge certain ideas which had their roots in the treatment of rights arising from these two classes of actions, and so to give rise to that common-law conception of a chose in action which was so largely extended in later law. We must therefore examine the nature of the rights which arose within the spheres of the real and personal actions respectively, and the manner in which these rights came to be merged in the general conception of a chose in action.

Since the conception of a chose in action was primarily connected with a right arising from a personal action, I shall, in the first place, say something of the manner in which rights of this kind were regarded, and of the contribution made by ideas derived from this source. In the second place, I shall say something of the contribution made by ideas derived from rights arising within the sphere of the real actions. In the third place, I shall indicate the results of the combination of these two sets of ideas.

(i) The Rights Arising from the Personal Actions. In the language of Roman law, personal actions were founded upon an obligatio; and an obligatio might arise either out of contract or tort. Britton, though he discarded much of Bracton's Roman law, repeats this dictum; 21 and though many of the personal actions of English law cannot be clearly grouped under these categories,2

22

if they were separate things, though it would seem that the mention of a right of entry has suggested to Huse, C. J., the idea of a chose in action- their similarity is beginning to be perceived.

17 "Things in action is when a man hath cause or may bring an action for some duty due to him, as an action of debt upon an obligation, annuity, or rent, action of covenant or ward, trespasse of goods taken away, beating or such like," cited 9 L. QUART. REV. 311.

18 "Chose in action is a thing incorporeal, and only a right: as an annuity, obligation for debt, a covenant, voucher by warranty, and generally all causes of suit for any debt or duty, trespass or wrong, are to be accounted choses in action," cited Ibid., 311-312.

19 2 COMM., 396-397.

20 Supra, note 16. See the definitions given in SHEPPARD'S TOUCHSTONE, and JACOB'S LAW DICTIONARY, cited infra, notes 57, 58.

21 I. 29. 2.

22 2 HOLDSWORTH, HISTORY OF ENGLISH LAW, 311-312.

the distinction was remembered, and necessarily emerged as the idea of contract came into greater prominence with the growth of the action of assumpsit. But it is clear that a personal action brought either on a contract or a tort is an essentially personal thing. The two parties have agreed, or the plaintiff has been wronged by the defendant. In both cases the cause of action arises from matters affecting these two persons and these only. On that account the common lawyers saw as clearly as the Roman lawyers that such rights of action were personal matters between these two persons. Therefore the assignment of such a right of action by the act of the two parties was unthinkable.23 Indeed it was with difficulty, and only gradually and partially, that it was allowed to pass by operation of law to the representatives of a deceased person.24 On the other hand, to allow the person entitled to bring the action to release his right to the person against whom it could be brought, involved no logical impossibility; for a personal right can as easily be dissolved as created by the act of the two persons concerned. Therefore just as a personal right, such as a debt, can be created by the agreement of the parties, so the debt and the right of action for it can be released by the converse agreement.25

But as the common law developed, it soon became apparent that certain actions in tort were in substance actions to recover property; and by means of developments both in the actions of detinue and of trespass, the proprietary rights of the owner out of

23 This was first suggested by 2 SPENCE, EQUITABLE JURISDICTION, 850, who pointed out that this was the foundation of the doctrine adopted in every other state in Europe; and that this is the correct view has been proved by Sir F. POLLOCK, CONTRACTS, 5 ed., 206, and Appendix, note F.; up to that time lawyers had been content to accept the view put forward by Coke in Lampet's case, 10 Co. Rep., f. 48a (1613), that the reason for the rule was the discouragement of maintenance; we shall see that the desire to discourage maintenance and kindred offences has had a very important influence on the law as to the assignability of choses in action, infra, 1016 seqq.; but, though it was a contributory cause to the continuance of their non-assignability, and to other points connected with the law relating to them, it cannot be regarded as being the sole or the earliest cause.

24 3 HOLDSWORTH, HISTORY OF ENGLISH LAW, 458.

25 Litt., §§ 508, 511, 512. In commenting on § 512, which deals with the release of a debt before the time of payment has arrived, Coke says, Co. LITT., 292b, "For that the Debt is a thing consisting merely in action, and therefore, albeit no action lieth for the debt, because it is debitum in praesenti quam vis sit solvendum in futuro; yet because the right of action is in him, the release of all actions is a discharge of the debt itself."

possession were coming to be better protected. Thus it was recognised in the sixteenth century that a bailor who had bailed his property had the property in reversion.25 It was also recognised that an owner of goods might retake them from a trespasser,27 and that a mere release of rights of action to the wrongdoer would not bar his right of entry.28 We might therefore have expected that the rights of the owner out of possession would come to be recognised as something more than a mere personal chose in action; and that they would develop into assignable rights of property. And, in fact, there are some hints that the law was tending to develop in this direction. Thus in 1431 29 Paston, J., said, “if I bail to you a deed to rebail to me, and then I grant the same deed to B, I shall not have writ of detinue against you after this grant, but the said B will have writ of detinue." 30 So too in 1491 the validity of a gift by a bailor seems to be maintained by Vavisor; " but it was distinctly denied by Brian, C. J., who held that such rights could not be given.32 But Brian's view did not wholly prevail. The later cases show that modifications were being made. In 1561 it was held that where a woman had bailed property to another and married, her husband could release the right to the property to the bailee.33 This clearly shows that the bailor's proprietary right was something more than a mere chose in action. It was sufficiently proprietary in its character to pass to the husband on marriage. Similarly, it was the fact that a contract of sale gave right to get possession which could be asserted by action. of detinue, which is the origin of the rule that a sale passes the property in the goods without delivery.34 In the case of a sale, therefore, it was recognised that a right to the property sold which

26 I BROOKE, ABRIDGMENT, Propertie et Proprietate Probanda, pl. 33 = Y. B. 22 EDW. IV, Pasch., pl. 29, on which the question was discussed whether cattle let by the lessor for a term could be taken for his debt.

27 3 HOLDSWORTH, HISTORY OF ENGLISH Law, 244-245; Chapman v. Thumblethorp, Cro. Eliza. 329 (1594).

28 Litt., § 498.

29 Y. B. 9 HEN. VI, Hil., pl. 17.

30 “Si jeo baille a vous un fait a moy rebailler, et puis jeo grant meme le fait a B., jeo n'aurai bref de Detinue vers vous apres cel grant, mes le dit B aura bref de detinue." 31 Y. B. 6 HEN. VII, Mich., pl. 4 (pp. 8–9).

32 "S'il n'ad forsque droit cel don est void; car on ne poit don son droit." Ibid.,

p. 9.

33 DAME AUDLEY'S CASE, MOORE, 25.

34

3 HOLDSWORTH, HISTORY OF ENGLISH LAW, 282-284.