CHOSE IN ACTION. A right to receive or recover a debt, or money, or damages for breach of contract, or for a tort connected with contract, but which cannot be enforced without action. Comyns, Dig. Bicns.
' It is difficult to find out the exact mean ing of the expression; the meaning attribut ed to it has been explained from time to time; 30 Ch. D. 282, 276, 277; 11 App. Cas. 439, where Lord Blackburn said that the phrase has been used "accurately or inac curately, as including all personal chattels that are not in possession." It now includes all personal chattels which are not in pos session; 11 App. Cas. 440. It includes an annuity ; 3 Mer. 86, unless charged on land ; 14 Sim. 76; consols; 1 Ves. Jun. 198; shares; 11 A. & E. 205; a ticket in a Derby sweepstakes; 8 Q. B. 134; all debts and all claims for damages for breach of contract; Bushnell v. Kennedy, 9 Wall. (U. S.) 387, 19 L. Ed. 736; open accounts or unliquidated accounts; Sere v. Pitot, 6 Cra. (U. S.) 332, 3 L. Ed. 240; Wilkinson v. Wilkinson, 2 Curt. 582, Fed. Cas. No. 17,677; contracts for the delivery of chattels or money ; Bush nell v. Kennedy, 9 Wall. (U. S.) 387, 19 L. Ed. 736; certificates of deposit; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. Ed. 500; a check on a bank; L. R. 6 Eq. 198; a personal right not reduced into pos session but recoverable by a suit at law ; 2 Kent 351; a mere right of action as to a chattel, not in actual possession; Yerby v. Lynch, 3 Gratt. (Va.) 494.
It is one of the qualities of a chose in ac tion that at common law it is not assign able; 10 Co. 47; Gardner v. Adams, 12 Wend. (N. Y.) 297; 1 Cra. (U. S.) 367. In Brac ton's day it went to the heir, and he, not the executor, sued for the debts due to a dead man. This naturally led to difficulties, and the courts gradually yielded to the pres sure of necessity and without a statute, so momentous a change was made as that, early in the time of Edward I., the chancery had framed and the king's court had upheld writs of debt for and against executors; 2 Poll. & Maitl. 344. It was Coke's idea that the origin of the rule against assignment of choses in action was the "wisdom and policy of the founders of our law," in discouraging maintenance and litigation, but Pollock thinks that there is no doubt that it was the logical consequence of the primitive view of a contract as creating a strictly personal obligation between creditor and debtor. See
Wald, Poll. Torts 207, and note G. in App. supporting this - view. In equity, from an early period, the courts have viewed the as signment of a chose in action for a valuable consideration as a contract by the assignor to permit the assignee to use his name for the purpose of recovery, and, consequently, enforce its specific performance, unless con trary to public policy ; 1 P. Wms. Ch. 381; Hoppiss v. Eskridge, 37 N. C. 54; Dobyns v. McGovern, 15 Mo. 662. And now, at com mon law, the assignee is entitled to sue and recover in the name of the assignor, and the debtor will not be allowed, by way of defence to such suit, to avail himself of any payment to or release from the as signor, if made or obtained after notice of the assignment; 4 Term 340; Bartlett v. 1Pearson, 29 Me. 9; Webb v. Steele, 13 N. H. 230; Pitts v. Holmes, 10 Cush. (Mass.) 93; Blin v. Pierce, 20 Vt. 25; Caldwell v. Meshew, 44 Ark. 564. If, after notice of the assignment, the debtor expressly promise the assignee to pay him the debt, the as signee will then be entitled to sue in his own name; Crocker v. Whitney, 10 Mass. 316; Tiernan v. Jackson, 5 Pet. (U. S.) 597, 8 L. Ed. 234; Clarke v. Thompson, 2 R. I. 146; Barger v. Collins, 7 Harr. & J. (Md.) 213; Ford v. Adams, 2 Barb. (N. Y.) 349; Geer v. Archer, 2 Barb. (N. Y.) 420; Thomp son v. Emery, 27 N. H. 269; but without such express promise the assignee, except under peculiar circumstances, must proceed, even in equity in the name of the assignor ; Ontario Bank v. Mumford, 2 Barb. Ch. (N. Y.) 596; Carter v. Ins. Co., 1 Johns. Ch. (N. Y.) 463; Adair v. Winchester, 7 Gill & J. (Md.) 114 ; Lenox v. Roberts, 2 Wheat. (U. S.) 373, 4 L. Ed. 264; or by agreement he can sue in his own name and pay over the proceeds of the sale to the assignor, in which case he becomes a trustee; Dean v. Chandler, 44 Mo. App. 338.