It is a familiar statement in the law books that choses in action are not assignable. This was carried so far in the early law that an assignee of a right in contract acquired absolutely no right as such.2 Coke states as the reason of this principle that the "wisdom and policy of the sages and founders of our law" discouraged maintenance.3 But had this been the basis of the rule the courts would not have permitted suit by an attorney with power to retain the proceeds of the suit. The true reason for the non-assignability of choses in action in the English Law as well as in the Roman Law seems to have been that the relation between the original obligor and obligee was regarded as a vital part of the obligation which could no more be changed than any other term of the obligation.4
At any rate, in so far as maintenance ever was an objection to the assignment of choses in action, it has ceased to be so.5
2 Mowse v. Edney, Rolle's Abr. 20, plac. 12; Penson & Higbed's Case, 4 Leon. 99.
3 Lampet's Case, 10 Coke, 46a, 48a. Blackstone gives substantially the same reason, 2 Bl. Com. 200.
4 Ames' Lectures on Legal History, 258. Professor Ames thus shows the inadequacy of the explanation of maintenance: "The wrong of maintenance lay in executing and exercising the power of attorney. The distinction was established at an early period, that the grant of a power of attorney to a creditor was not maintenance, while a similar grant to a purchaser or donee was maintenance. 34 Hen. VI, 30-15; 37 Hen. VI, 13-3; 15 Hen. VII, 2-3; South v. Marsh (1590), 3 Leon. 234; Harvey v. Beekman (1600), Noy, 52. As late as 1667-1672 the same distinction prevailed also in equity. "The Lord Keeper Bridgman will not protect the assignment of any chose in action unless in satisfaction of some debt due to the assignee; but not when the debt or to one to whom the assignor owes nothing precedent, so that the assignment is voluntary or for money then given.' Freem. C. C. 145. See Chadwick p. Sprite, Cro. El. 821. In Penaon p. Hickbed, Cro. EL 170 (32 EL) an objection was made by counsel that 'this buying of bills of debt is maintenance.' But the court held otherwise, 'for it is usual amongst merchants to make exchange of money for bills of debt, et e contra. And Gawdy, J., said it is not maintenance to assign a debt with a letter of attorney to sue for it, except it be assigned to be recovered, and the party to have part of it.' See S. C. 4 Leon. 00. In Barrow v. Gray, Cro. El. 651 (39 EI.) the Court held that 'the assignment of a debt or reconusance to a stranger is an illegal and void consideration; but to assign it to the terre-tenant, by way of discharge of his land, is clearly lawful.' See Michael v. Garden, 1 Vin. Ab. 296, pl. 12; Loder v. Cheeleyn, 1 Sid. 212,1 Keb. 744."
5 Clark v. Groan, 81 N. Y. Misc. 407, 142 N. Y. S. 966.