Definition
A characterization of property or a right that is not presently in a party's possession but can only be obtained or enforced through legal action. Property described as "in action" is distinguished from property "in possession": the holder has a recognized legal right to the thing, but the thing itself — or its value — must be pursued through a court proceeding to be realized. The concept is most familiar through the phrase "chose in action," which refers to a personal right enforceable by suit rather than by physical seizure or immediate enjoyment.
Common Language
Modern common usage (Wiktionary): "In operation; active" or "in combat."
Historical common usage (Webster's 1913): Active; working; as in a machine or mechanism currently operating; also used in military contexts meaning engaged in fighting.
The common meaning of "in action" conveys present activity or operation. The legal meaning is nearly the inverse: property described as "in action" is precisely that which is not currently operative in the hands of its rightful owner — it is withheld, disputed, or unrecovered. A researcher encountering "in action" in historical legal texts should resist the ordinary-language instinct and read it as a term of legal art indicating non-possession requiring judicial remedy.
Common Confusion
"In action" and "in possession" are the paired opposites of classical property taxonomy. Confusion arises when readers treat "in action" as descriptive of something currently happening (following common usage) rather than as a classification of a property right that is suspended, unrecovered, or enforceable only through suit. The term also overlaps closely with "chose in action" — "in action" is the qualifying phrase; "chose in action" is the full legal concept and the more frequently litigated form. Researchers who encounter "in action" standing alone in historical sources should treat it as shorthand for the chose in action framework.
Why It Matters in Research
"In action" functions as a structural marker in historical property law. When encountered in older pleadings, conveyancing documents, or equity materials, it signals that the subject matter is a right enforceable only by suit — a debt, a damages claim, a legacy, a contractual entitlement — rather than tangible property presently held. This distinction carried real procedural and substantive consequences: property in action could not be transferred by delivery alone, historically could not be assigned at common law without risk of maintenance or champerty, and was treated differently in bankruptcy, intestacy, and attachment proceedings.
Researchers working in pre-twentieth-century sources should be alert to the following:
The phrase "things in action" appears with some frequency in treatises and equity decisions as a collective noun for the class of intangible rights. It is the conceptual category; "chose in action" (Norman French equivalent) is the individual instance. Both appear in the Law Mind corpus and should be searched in tandem.
The historical limitation on assignment of choses in action — rooted in common law hostility to trafficking in litigation — underwent gradual erosion in equity and was substantially modified by statute in most jurisdictions by the nineteenth century. Sources from different periods will reflect different assumptions about assignability.
Burrill cites Hale's Analysis as authority, a reference useful for dating the concept's common law provenance and tracing its pre-Blackstone usage.
Bouvier's citation to 2 Blackstone's Commentaries 396 is a reliable anchor: that passage in Blackstone is the standard classical exposition of the in-possession / in-action distinction and provides the doctrinal baseline against which later modifications can be measured.
Historical Dictionary Support
All four source dictionaries present substantially identical definitions, converging on the formulation: property of which a party has not possession but holds only a right of recovery through action. The verbal agreement across Black's (both editions), Burrill, and Bouvier is notable and suggests the definition had become settled and formulaic by the time these dictionaries were compiled — no meaningful doctrinal divergence appears among them.
Burrill's reference to Hale and Bouvier's reference to Blackstone together suggest that the term's legal meaning was fixed well before the nineteenth-century dictionary tradition and was transmitted largely intact from common law sources. None of the four dictionaries address the assignment question or the equity modifications that had already substantially altered the practical consequences of the in-action/in-possession distinction by their publication dates — a significant gap for researchers dealing with nineteenth-century commercial or equity materials.
Jurisdictional Note
The in-action / in-possession taxonomy is rooted in English common law and was received across American jurisdictions, but its practical consequences — particularly around assignability, attachment, and treatment in insolvency — varied by state statute. Researchers working in American sources after approximately 1850 should check applicable state commercial and procedural codes, as many states had modified or abrogated common law restrictions on assignment of choses in action well before the Uniform Commercial Code era.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Chose in Action; Property Classification in Common Law; Assignment of Rights