a long way to discourage honourable and disinterested attentions on the one hand, and to promote the completion of ill-assorted unions on the other. As for loss of market'-if matrimonia debent esse libera be the true principle of law (and I submit that it is), and if, as Lord Mansfield has said1, it would be most mischievous to compel parties to marry who can never live happily together'-that equity is far outweighed by the others, and there should be, and there should be recognized to be, a 'place for repentance' up to the very moment when the knot is tied. In 1878 the present Lord Chancellor (then Mr. Herschell) brought in a short Bill to abolish Breach of Promise Actions altogether, and that Bill reappeared in 1883 and 1884, and again in 1888 and 1890, Mr. Bryce, Mr. Caine, and Sir Roper Lethbridge being amongst those who backed it. But on no occasion did it attain to a second reading. A resolution, however, in favour of abolishing the action 'except in cases where actual pecuniary loss has been incurred by reason of the promise, the damages being limited to such pecuniary loss,' was introduced by Lord (then Mr.) Herschell, and carried in the House of Commons by 106 votes to 65 on May 6, 18792, and there are floating rumours of a Bill on these lines for next Session promoted by the same high authority. Such a change would apply the ordinary rule as to measure of damages to this class of actions, would tend to exclude all evidence save that of the promise, the breach of it, and the consequent money loss, and would in practice reduce these causes to the financial level of the County Courts. Involving as it would the abolition of what often really amounts to indirect damages for seduction, and of all personal considerations of a mercenary character, such a rule might press hardly in some few cases, but the general effect of it would be wholesome. It would, to a very large extent, mean the clearing away of judicial extensions of jurisdiction, and of inexpedient equities, and the restoring of the broad principles of an older and more universal law. J. DUNDAS WHITE. 1 Quoted in Atchinson v. Baker, supra. 2 Hansard, vol. ccxlv, pp. 1867-87. 3 The proposal to make seduction under promise of marriage a misdemeanour seems more in harmony with the spirit of the law as to personal morality. But that is not yet. IS A RIGHT OF ACTION IN TORT A CHOSE IN ACTION? THE HE above question is raised in Sir Howard Elphinstone's late interesting article, intituled What is a chose in action 1?' and the learned writer appears to be of opinion that it should be answered in the negative. For he takes objection, towards the end of his article, to the definition of a chose in action in such terms as to include rights against a tortfeasor; notwithstanding that such a definition is given both in Termes de la Ley and Blount's Law Dictionary. It is difficult, Sir Howard Elphinstone says, to see how rights against a tortfeasor can be regarded as property. It is difficult to class a mere expectation of damages among property, and if it is not property it is not a chose in action. Then he argues that rights against a wrongdoer are to be distinguished from rights under a contract, because the latter were indirectly assignable by power of attorney, while an assignment of rights against a tortfeasor was absolutely void, not only at law, but in equity, on the ground of champerty. And he concludes by stating that the phrase chose in action is never at the present day used in the meaning of a right of action in respect of a tort. There are, however, certain considerations, upon which Sir Howard Elphinstone did not touch, and which appear to me to make in favour of an affirmative answer to the question raised. What these are, I hope to be now permitted to state; and I shall endeavour to show that there is good reason and respectable authority, besides that of Termes de la Ley and Blount's Law Dictionary, for not limiting the term chose in action, even at the present day, so as to exclude a right of action in tort. First, I think it will appear, on tracing the source of the term chose in action, that it is an elliptical expression for a thing lying in action. And a thing lying in action may, I think, be explained as a thing which it requires an action to recover or realize, if wrongfully withheld. And to recover or realize a thing would seem to mean to bring it into physical fruition, or to make it so ripe therefor that nothing is lacking to fruition of the thing but to take possession of it. The earliest allusion I have found to the distinction between things in possession and those in action 2 is 1 L. Q. R. ix. 311 (Oct. 1893). 2 There is no mention in Glanville, Bracton, Britton, or Fleta of any classification of things as being in possession or in action: but in the three last-mentioned works the difference is well marked between corporeal things in their owner's possession in 22 Ass. pl. 371, where it was said that the lord may seize what is in possession of a villein, as rent granted to him, of which he is seised, but the lord shall not have what remains in action to the villein (ceo que demurt en action al villein), as if obligation of debt or covenant or warranty be made to him. Coke, when citing the same case, remarks 2, But that which lieth in action, as a warranty made to the villein his heirs and assigns, the lord shall not take advantage of by voucher; because it is in lieu of an action. Neither shall the lord take advantage of any obligation or covenant or other thing in action made to the villein; because they lie in privity and cannot be transferred to others.' The term 'thing, in action' is not often employed by Coke: but there are other references in his Commentary on Littleton to chattels or things, which consist, or lie or are in action; and these seem to me to establish the identity of a thing in action with a thing lying in action. There are also passages of Littleton and Coke which show that, in speaking of a thing in action, reference is especially made to the fruits of the action, to the thing recoverable by means of the action, and that damages (a word which, according to Coke, hath in the common law a special signification for the recompense that is given by a jury for a wrong) are properly included among such things. These passages are to be found in Litt. s. 503, and Co. Litt. 288 b, and they relate to the cases in which a release of all personal actions may be well pleaded in bar of a writ of error. Coke points out a diversity, when by the writ of error the plaintiff shall recover or be restored to any personal thing, as debt, damage, or the like; and mere rights (of action or otherwise); Bract. fo. 10 b, 61, 407 b; Fleta, fo. 125, 126; Britt. liv. 1, ch. 29, s. 2, and liv. 2, ch. 2. ss. 1, 10. We learn from Bracton, too, that what may be termed things lying merely in action could not be bequeathed by will in his day. He points out (fo. 61, 407 b) that if debts due to a testator be not recovered by judgment or acknowledgment in his lifetime, the actions to recover them will pass to his heir: but debts so recovered are part of the testator's property and will go to his executors. And Littleton and Coke afterwards teach us (Litt. s. 504; Co. Litt. 289 a that debts recovered by judgment are not things lying merely in action, for they can be reduced into possession without action, i.e. by levying execution. In Fleta (fo. 183) actio is mentioned amongst the things, which nullo dari debent. 2 Co. Litt. 117 a. 1 Abridged, Bro. Abr. Chose in Action, 8. 3 See Co. Litt. 292 b, that rent reserved on letting land for a year is a thing not merely in action,' and that an annuity 'is not merely in action,' in each case, 'because it may be granted over.' See Co. Litt. 351 as to a husband's rights in his wife's chattels reals consisting merely in action,' 'chattels reals being of a mixed nature, viz. partly in possession and partly in action,' chattels real which were merely in action before the marriage,' and 'chattels personal, which be in action.' On comparing 10 Rep. 48 a with 3 Rep. 2 b, it appears that, when Coke speaks of a 'right to land in action,' he means a right, which consists only in action, where the entry is tolled.' Such a right (for which the party hath no remedy but by action only to recover the land') is said to be a thing which consists only in privity, and which cannot escheat, nor be forfeited by the common law.' Co. Litt. 257 a. for then the release of all actions personal is a good plea, for that the plaintiff is to recover or be restored to something in the personalty. And afterwards he bids us note that an action real or personal doth imply a recovery of something in the realty or personalty or a restitution to the same. According to Coke, therefore, damage, or recompense for a wrong, is a thing recoverable by action in the personalty. It appears to follow that it is a personal thing in action. Brooke too, whose use of the term chose in action in his Abridgment shows that it was an established law term before Coke's day, appears to admit the right to bring an action of trespass to be a chose in action, though an uncertain one, not assignable even by the king 3. The definition of a chose in action given in Termes de la Ley plainly includes a right of action in tort. Sir Howard Elphinstone however traverses this part of the anonymous author's explanation of the term upon the authority of Blackstone. Now Blackstone, instead of being contented to explain the distinction made by his predecessors between what is in possession and what lies in action, endeavoured to expand the difference so taken into an exhaustive classification of property in chattels personal. Property in chattels personal,' he says, '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.' Later on, after admitting the right to recompense for a breach of contract, giving rise to a claim for unliquidated damages, to be a chose in action, he lays down that all property in action depends entirely upon contracts 5. In making these statements Blackstone does not appear to be following any previous authority. These statements, however, seem to have prompted Sir Howard Elphinstone's argument above quoted, which we will now consider in detail. As we have seen, Sir Howard Elphinstone says that it is difficult to class a mere expectation of damages among property, and if it is not property it is not a chose in action. But to this it may be objected, first, that the term chose in action was an established law term long before the word property came to be used in the wide sense of valuable things, in which it appears to be here employed"; so that it can hardly be accurate to require a right of action in tort to be included in property as a condition precedent to its being classed among things in action. And secondly, that rights of action for injuries to property have been expressly held to be 2 Brooke died in 1558; Foss, Judges, v. 360. 1 Co. Litt. 289 a. Bro. Abr. Chose in Action, 11, abridging Y. B. 5 Edw. IV. 8, pl. 22. 4 2 Black. Comm. 389. See below, p. 146, n. 2. included in the personal estate of the injured party, and to pass under the words 'personal estate' to his assignees in bankruptcy by virtue of the Bankruptcy Act of 1825'. And personal estate (in the wide sense of the word) appears to be exactly equivalent to personal property 2. It will not, moreover, be disputed that under the present Bankruptcy Act, as under the Act of 1869, a bankrupt's rights of action for injuries to property pass to the trustee in bankruptcy. But there are no words in either statute to effect this, save the provision that the bankrupt's property (which expression is declared to include things in action 3) shall vest in the trustee 4. A man's rights of action for injuries to his property must therefore be necessarily included in his property, notwithstanding that the amount of the recompense to which he is entitled remains uncertain till a verdict be obtained. So that, even if we adopt Sir Howard Elphinstone's own test of a chose in action, rights of action for injuries to property appear to fulfil its require ments. With respect to rights of action for injuries to the person or reputation, it is of course settled that they are so personal to the injured party that they are not included in the property which passes to his trustee in bankruptcy 5. But it is submitted that such rights may nevertheless be aptly described as things in action, because the recompense for any wrong is a thing lying in action; and, as Blackstone himself is forced to admit 6, the right to compensation for a wrong arises immediately the injury is committed, 1 See Stat. 6 Geo. IV, c. 16, s. 63; Beckham v. Drake (1849), 2 H. L. C. 579, at pp. 625, 626, per Parke B. The words "personal estate" clearly comprise all chattels, chattel interests, and all the subjects mentioned in the 12th section' (of Stat. 6 Geo. IV, c. 16); and they also comprise some rights of action which are not properly debts, and would not pass under the word "debts," but do pass under the description of "personal estate." For instance, some actions for tort do pass. Actions for injuries to personal chattels, whereby they are directly affected, and are prevented from coming to the hands of the assignee, or come diminished in value, undoubtedly pass. The action of trover for a conversion before the bankruptcy is a familiar instance of this.' 2 See Kirwan v. Johnson (1651), Style 293; Countess of Bridgewater v. Duke of Bolton (Hil. 2 Anne), 6 Mod. 106; Scott v. Albury (Pasch. 6 Geo. I), Comyns, 337, 340; Hogan v. Jackson (1775), Cowp. 299, 306, 307; Doe d. Wall v. Langlands (1811), 14 East. 370, 12 R. R. 553; Doe d. Morgan v. Morgan (1827), 6 B. & C. 512; a succession of cases showing how, first, the word estate, and afterwards the word property, acquired in law the meaning of everything valuable which a man has. Brooke, who in his Abridgment uses chose in action as a well-known term, employs the word propertie in the sense of ownership only, in which sense it is used in the Year Books. See Bro. Abr. Propertie; Y. B. 6 Hen. VII. 7, pl. 4. Down to Coke's time and after, the proper legal description of everything a man had was all his lands, tenements and hereditaments, goods and chattels; and real and personal estate hardly became established law terms before the reign of Charles II; see the authorities cited in Williams, Real Property, pp. 25-28, 17th ed. See Stats. 46 & 47 Vict. c. 52, ss. 20, 44, 50 (5), 54, 57 (2), 168; 32 & 33 Vict. c. 71, ss. 4, 15, 17, 22. See Seear v. Lawson, (1880) 15 Ch. D. 426; Guy v. Churchill, (1888) 40 Ch. D. 481, 487. Ex parte Vine, Re Wilson, (1878) 8 Ch. D. 364. 2 Black. Comm. 438. |