Odger's English Common Law

36 PRIVATE EIGHTS.
portion of B.'s property ; he has no interest in, or charge or
lien on, or any right to seize, any land or any thing of B.'s.
He has no claim on any particular five sovereigns. B. merely
owes him 51. ; and the value of that debt may be doubtful
it depends on B.'s solvency. In other words, A. has no
jus in rem, no jus in re aliend ; he has only a jus in personam.
Again, if A. knocks B. down in the street, or flings a stone
and breaks B.'s window, A. incurs liability to B. B. has a
right to sue A. for damages. But till judgment and execution
B. acquires no rights over A.'s property.
Nevertheless such a right of action, whether founded
on contract or in tort, is an asset of some value ; and
since the Judicature Act, 1873, it can be sold and
assigned to a third person. 1
It must therefore be regarded
as a kind of property ; and when so regarded it is called a
" chose in action : " this is a Norman-French phrase which
our ancestors employed to indicate a right to take pro-
ceedings in a court of law to recover a debt or damages.
It was thus opposed to things in possession, which were
tangible property, capable of being stolen or taken in execu-
tion under a judgment of the Court. A right of action to
recover unliquidated damages was as much a chose in action
as a debt for a fixed amount. But in either case the right
had to be vested ; the mere possibility that A. might here-
after do or omit to do something which would give B. a cause
of action against him was not a chose in action.
The phrase "right of action" is used when the parties
are contemplating immediate litigation ; but when the right
is regarded as a species of property, it is called a " chose in
action." And there is this further distinction between the
two terms. A. may owe B. money, but the time for repay-
ment may not yet have arrived. This is a good debt, although
it is one which is not yet payable. It is therefore a chose
in action, although B. has not at present any right to sue
for it. 2
Originally, then, the term " chose in action " was applied
1 See Assignment of Contracts, post, pp. 773—775.
2 See Brice v. Bannister (1578), 3 Q. B. D. 569 ; West v. Neiving (1900), 82
L. T. 260.
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