losses or contributions is the same as if there were different Chap. VIII. owners (1). The ship, nett freight (m) and cargo (n) have (but the wearing apparel, &c. of the passengers and crew, the wages of the crew, and the stores and provisions (o) of the ship have not) to contribute. The value of the ship must be taken at the end of the voyage (p); or, if she is lost, at the place whence she sailed, after allowing for wear and tear up to the time of her loss (p). The nett freight consists of the clear earnings after deducting the expenses of the voyage, including wages. The goods are valued, if the vessel reaches her destination, at their selling price there, and if she puts back to the place where she laded, at their invoice price. average. A particular average loss is a partial loss of the subject-matter Particular insured, caused by a peril insured against, which is not a general average loss (q). Losses of this nature are borne by the owner of the thing damaged (r). The phrase "particular average" is used as showing that the particular owner has alone to bear the loss (8). (7) S. 66 (7). See Montgomery v. Indemnity Co., [1902] 1 K. B. 734. (m) Carisbrook Co. V. London Co., [1902] 2 K. B. 681. (n) Dobson v. Wilson, 3 Camp. 480; 14 R. R. 817. (0) Brown v. Stapleton, 4 Bing. 119; 29 R. R. 524. (p) Grainger v. Martin, 4 B. & S. 9. (2) S. 66 (7). Various definitions G.P.P. 9 CHAPTER IX. CHOSES IN ACTION. Chap. IX. What is a "chose in action." 66 THE phrase "chose in action" is used in contradistinction to 'chose in possession" (a). It is used in various meanings, which have been the subject of much controversy (b). Sometimes it denotes the rights of the person entitled to property, sometimes the property over which he has rights, and sometimes the instrument which evidences those rights (c). Where the term chose in action occurs in a statute, the context may show that it is not to be taken in its widest meaning (d). Blackstone says (e):— Property in chattels personal may be either in possession, 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 a bare right without any occupation or enjoyment" (f). This definition includes the rights of a person out of possession of a specific corporeal chattel, as for instance the rights of a bailor, but the term "chose in action" is commonly restricted to certain rights to the payment of money. The rights of the owner of a specific chattel of which he has not the possession are very different from the rights of a person to whom money is due. Where a specific chattel is bailed, the owner can sell it, and by the sale the general property passes to the buyer subject to the special property of the bailee (g). If the bailee wrongfully delivers the goods to a stranger so as to determine the bailment (h), the bailor can maintain an action for (a) As to the meaning of " posses- (b) Colonial Bank v. Whinney, 30 Ch. (c) Elph. Introd. ch. 7, pt. 2. (d) Colonial Bank v. Whinney, sup. (f) I.e., without possession. See Purdew v. Jackson, 1 Russ. 44; 25 R. R. 1; Re Thynne, [1911] 1 Ch. 282. For a good example of the distinction, see Flower's Case, Noy, 67. (g) Franklin v. Neate, 13 M. & W. 481; ante, pp. 17, 22. (h) Ante, p. 24. the injury done to his right to possess against both the bailee and Chap. IX. the stranger, unless the latter bought them from the bailee in market overt. As we have already seen (i), a person from whom goods have been stolen can maintain an action against an innocent person in whose hands they are. On the other hand, as we shall see (post, p. 133), a person to whom money is due cannot generally at common law transfer his right to sue for it to a stranger, and no act of the debtor will confer on his creditor a right to recover the money from a stranger. Again, it may be observed that there is a difference between a specific corporeal chattel and money due, inasmuch as the latter may not exist, or may never exist; a debt may be paid by bank notes or cash which were not printed or coined at the time when it was incurred; or it may even be discharged by entries in books. Formerly the phrase "chose in action real" was applied to a right of entry on land (k); but at the present day the phrase "chose in action" is restricted to rights over personal property, subject to the following observations: (1) A mortgage debt is not the less a chose in action because it is secured on real estate. (2) A contract relating to realty creates a chose in action. This may perhaps be explained by the fact that at law the only remedy for breach of contract was in damages, which are personal property. If we regard choses in action as consisting of rights, we may Choses in divide them as follows: (1) Rights under a contract; (2) Rights to money payable otherwise than under a contract (1); as, for example, money payable under an order of Court. The reader may perhaps have some difficulty in seeing how rights under a contract which does not relate to property (as, for instance, to do work) can be considered as rights over things. Blackstone (m) explains this by pointing out that if a man contracts to do any act and fails in it, the remedy is in damages, i.e., money. But, however this may be, rights arising under contracts of any nature are choses in action (n). action considered as rights. Chap. IX. Choses in action considered as things. On the other hand, if we regard choses in action as consisting of the things over which rights are exerciseable, they may be divided into, (1.) Money recoverable under a contract, or as damages for breach of contract; (2.) Debts of record; judgment debts; (3.) Shares and stock in companies (o). As to money recoverable under a contract, or as damages for breach of contract, Blackstone says (p): 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 to me by legal verdict and execution.". Some of the more important choses in action are specialty debts, simple contract debts (which include moneys secured by bills of exchange, promissory notes and cheques (q)), debts of record, judgment debts (r), and moneys payable under policies of assurance (s). A specialty debt is one created by a contract under seal, i.e., by deed; a simple contract debt is one which is created by writing, not under seal, or by a verbal contract, express or implied, and which is not of record. There are two other classifications of choses in action. First, according to the manner in which the rights of the person and equitable. entitled to the chose in action can be enforced. Choses in action, legal If the rights can be enforced at law, the chose in action is called a legal chose in action, as, for instance, where it is a debt. If they can be enforced in equity only, the chose in action is called an equitable chose in action, as, for instance, a legacy (t). So, if a mortgage debt, or railway stock, be vested in trustees on trust Co., [1901] 2 Ch. 608; and Torkington (0) Colonial Bank v. Whinney, 11 App. (p) 2 Bl. Ch. 25. (r) As to the different classes of debts, see post, Chap. XI. (8) Post, Chap. x. (t) Deeks v. Strutt, 5 T. R. 690. to pay the interest or dividends to A., A.'s right to the interest or Chap. IX. dividends is enforceable in equity only, and therefore it is an equitable chose in action, while, as the trustees have a legal right to sue for the interest or dividends, their right is a legal chose in action. chose in Where the right, whether legal or equitable, is to the future Reversionary enjoyment of personal property, it is called a reversionary chose action. in action; an example is afforded by a policy of insurance, by virtue of which moneys are to be paid on the death of a living person. of choses in Secondly-Choses in action can also be classified according to Assignment the manner in which, prior to the Judicature Acts (u), they were action. assignable. There were four classes: (1) those assignable at common law; (2) those assignable in equity only; (3) those assignable by statute; (4) those incapable of being assigned either at law or in equity (x). Choses in assignable at action not Generally speaking, choses in action were not assignable at common law, that is to say, if A. assigned his chose in action to B., B. could not maintain an action in his own name against the common law. debtor. Coke states (y) the reason to be,-"For that would be the occasion of multiplying of contentions and suits, of great oppression of the people, and the subversion of the due and equal execution of justice" (z). A better explanation of the rule, however, is that it is "a logical consequence of the archaic view of a contract, as creating a strictly personal obligation between the creditor and the debtor" (a); or that (b) at common law the ownership, whether of land or of chattels, could be transferred only by delivery of possession, and that therefore it could not be transferred at all where delivery of possession was impossible, unless in the exceptional case where it was transferred to a person already in possession. If the latter view be correct, the reason why the owner of a chose in action was unable to assign it at common law was that, owing to its having a mere notional existence, it was impossible to deliver possession of it. (u) The Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, came into operation in 1875. (x) See generally on assignment of choses in action, the notes to Ryall v. Rowles, 1 W. & T. L. C. 104 ; Tolhurst v. Associated, &c. Co., [1902] 2 K. B. 660 ; [1903] A. C. 414. Pollock on Contr. 228 et seq.; Leake on Contr. Pt. vi., (y) Lampet's Case, 10 Rep. 48a. (a) Pollock on Contr. 217. (b) This view was suggested by Prof. Maitland in 2 Law Quarterly, 481. |