the thing fo recoverable is called a thing, or choſe, in action[1]. Thus 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 me by legal judgment and execution. In the former of theſe caſes the ſtudent will obſerve, that the property, or right of action, depends upon an expreſs contract or obligation to pay a ſtated ſum: and in the latter it depends upon an implied contract, that if the covenantor does not perform the act he engaged to do, he ſhall pay me the damages I ſuſtain by this breach of covenant. And hence it may be collected, that all property in action depends entirely upon contracts, either expreſs or implied; which are the only regular means of acquiring a choſe in action, and of the nature of which we ſhall diſcourſe at large in a ſubſequent chapter.
At preſent we have only to remark, that upon all contracts or promiſes, either expreſs or implied, and the infinite variety of caſes into which they are and may be ſpun out, the law gives an action of ſome ſort or other to the party injured in caſe of non-performance; to compel the wrongdoer to do juſtice to the party with whom he has contracted, and, on failure of performing the identical thing he engaged to do, to render a ſatisfaction equivalent to the damage ſuſtained. But while the thing, or it's equivalent, remains in ſuſpenſe, and the injured party has only the right and not the occupation, it is called a choſe in action; being a thing rather in potentia than in eſſe: though the owner may
- ↑ The ſame idea, and the ſame denomination, of property prevailed in the civil law. "Rem in bonis noſtris habere intelligimur, quotiens ad reciperandam eam actionem habeamus." (Ff. 41. 1. 52.) And again; "aeque bonis adnumerabitur etiam, ſi quid eſt in actionibus, petitionibus, perſecutionibus. Nam et haec in bonis eſſe videntur." (Ff. 50. 16. 49)
