may best be illustrated by considering first the Dickens atmosphere of his early days, which he reproduces so successfully that it is sometimes hard to tell where Dickens leaves off and he begins. With this may be contrasted the situation in the New World, where old Mark Savage, the blacksmith in the Oregon wilderness, was heard to grumble, "The darn place is getting too thick for me anyhow there's folks within half a mile of me whichever way I turn!" (p. 164).

It is a pity that Mr. Nash does not record more of his own impressions of the changed legal conditions but perhaps it is unnecessary. The story speaks for itself. "I opened," he tells us, "a law office in Corvallis and had immediate introduction into the life of the country lawyer. Much was new, and I was often more at a loss than I showed, although I had been making careful study of the Oregon Code and reports and precedents." Imagine the dignified English solicitor who had encountered the greatest difficulty in winning conservative English capitalists over to that novelty, the telephone, transplanted to a place where he not only has to step out of his office and appear in court, but where as lobbyist on behalf of his clients he has to face a crowd of drenched Oregon farmer-legislators, to keep them in good spirits by speech-making while he breaks the news to them that the new railroad which they are inspecting cannot take them back safely to the capital because of the danger of washouts!

The habit of writing such legal autobiographies has not made so much progress on this side of the Atlantic as it has abroad, and for helping to import the charming tone of the English books of this type, Mr. Nash deserves warm appreciation.

NATHAN ISAACS.

THE YOUNG MAN AND THE LAW. By Simeon E. Ealdwin. New York: The Macmillan Company. 1920. pp. 160.

Surely no one is better qualified than Judge Baldwin to tell from personal experience the possibilities which lie before a young man who enters the legal profession. In his well-rounded life of more than four-score years, he has been a successful practitioner at the bar, a member of the Commission which made his native State of Connecticut a leader in the reform of procedural law, Associate and later Chief Justice of the highest court of that State, Governor, author, President of the American Bar Association, and for fifty years a professor of law in a great University. Very naturally his account of the legal profession is given in an optimistic tone. His chapter on the Attractions of the Legal Profession is twice as long as that upon the Objections to Choosing the Legal Profession. The book is more optimistic than the briefer and more statistical book on "The Law as a Vocation," by Frederick J. Allen, recently published. (See 33 HARV. L. REV. 739.) Although he deals at length with the larger ideals of the profession, Judge Baldwin does not neglect such practical details as the amount of money a lawyer may make, or the danger a lawyer runs of becoming irritable and cross-grained, a nuisance to his wife and children. The book is full of quotations of the words of eminent lawyers from Cicero to Chauncey M. Depew. It is interesting and instructive. A young man pausing on the brink of choosing his life-work should read what the legal profession means to one of its foremost votaries.

A. W. S.

INTERNATIONAL PRIVATE LAW OF JAPAN. By J. E. de Becker. Linden: Butterworth and Company. 1919. pp. iii, 149.

This little book purports to give only a general outline of the Japanese Private International Law. Almost one half of its contents is devoted to the

subject of nationality and the position of aliens in Japan. The portion dealing with the Conflict of Laws proper summarizes the principal continental views relating to the subject in hand and states thereupon the rule selected by the Japanese legislator. The treatise is a most elementary one and contains no critical discussion of the subject. There are no references to any decisions nor to the views of Japanese text-writers. As in his many other works on Japanese law the author's object is an extremely practical one, namely, to familiarize Western jurists somewhat with the fundamentals of Japanese law.

Notwithstanding the modest character of the work, it will be welcomed by the students of the Conflict of Laws because it contains a more complete statement of the Japanese law than was available heretofore. Prior to the appearance of this book the only information concerning the Japanese Conflict of Laws accessible to persons not acquainted with the Japanese language was to be found in an article by Yamada, "Le Droit International Privé au Japon," 28 CLUNET, 632-639. ERNEST G. LORENZEN.

A TREATISE ON THE LAW OF INHERITANCE TAXATION. By Lafayette B. Gleason and Alexander Otis. Albany and New York: Matthew Bender and Company. 1919. pp. lxvii, 1138.

The first edition of this book appeared in 1917, and now some three hundred pages have been added in the second edition. Twenty-five out of fifty jurisdictions have in those two years amended their statutes. This class of legislation, like the income tax situation, is still in the transition period. We hope that the authors will keep us up to date until the statutes harden into permanent form. The second edition is chiefly concerned in this worthy task. The original plan of the book is retained. It is: to discuss the nature of the tax, the transfers taxable, the parties and their interests, residence of the decedent, beneficiaries, exemption, remaindermen, etc.; to give procedure in New York, and statutes. The book also contains tables of mortality used throughout the country and much useful information in regard to stock corporations, and addresses of state officers. While emphasis is laid on New York law, lawyers elsewhere will find the state statutes and many of their local decisions in the earlier part of the book.

J. W.

HARVARD

LAW REVIEW

VOL. XXXIII

JUNE, 1920

No. 8

THE HISTORY OF THE TREATMENT OF CHOSES IN ACTION BY THE COMMON LAW

"A

LL personal things are either in possession or action. The 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. 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.

3 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 mediæval 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 (1886).