and exploded by lightning or a stranger. (2) A second class would be lawful undertakings so hazardous as to make the defendant liable without fault of anybody, provided no new intervening force produced the result (i. e., Rylands v. Fletcher). (3) In a third class would be lawful undertakings less hazardous than this last, where liability is excluded unless there has been fault in someone, but still so hazardous as to make the duty of care non-delegable, so that a defendant who is without personal blame may still be held responsible. (4) Lastly, there would be undertakings which involve a duty of care, but for which the defendant cannot be held without fault of his own or his servant's. This situation has been recognized by the Supreme Judicial Court of Massachusetts, which, speaking through one of its ablest members, has defined the second and third classes as follows:

"This rule is rightly applicable only to such unusual and extraordinary uses of property in reference to the benefits to be derived from the use and the dangers or losses to which others are exposed, as should not be permitted except at the sole risk of the user. The standard of duty established by the courts in these cases is that every owner shall refrain from these unwarrantable and extremely dangerous uses of property unless he provides safeguards whose perfection he guarantees. . . . The principle applicable to the erection of common buildings whose fall might do damage to persons or property on the adjacent premises holds owners to a less strict duty. This principle is that where a certain lawful use of property will bring to pass wrongful consequences from the condition in which the property is put, if these are not guarded against, an owner who makes such a use is bound at his peril to see that proper care is taken in every particular to prevent the wrong. . . . The duty which the law imposes upon an owner of real estate in such a case, is to make the conditions safe so far as it can be done by the exercise of ordinary care on the part of all those engaged in the work. He is responsible for the negligence of independent contractors as well as for that of his servants. This rule is applicable to every one who builds an ordinary wall which is liable to do serious injury by falling outside of his own premises, ... The uses of property governed by this rule are those that bring new conditions which involve risks to the persons or property of others, but which are ordinary and usual and in a sense natural, as incident to the ownership of the land. The rule first referred to applies to unusual and extraordinary uses which are so fraught with peril to others that the owner should not be permitted to adopt them for his own purposes with

out absolutely protecting his neighbors from injury or loss by reason of the

use.

" 18

In thus differentiating from one another the two intermediate situations of the four above referred to, the court seems at times to use an emphasis which brings the second near to the first, and the third to the fourth as if Rylands v. Fletcher scarcely applied, unless the use of the defendant's property were so unreasonable that it might almost be classed as a nuisance, and as if the rule of nondelegable duties applied to all building operations. But this cannot have been the meaning of the court, as there are undoubtedly cases -the ordinary external repair of a chimney, for example-to which no such rule applies.19

On this general subject of the relation of liability to fault the attempt at method in solving the problem of adequate protection to the plaintiff without injustice to the defendant - the confusion of our law by no means stops at the instances above referred to. Rules coming down in tattered fragments from a time when, to quote Chief Justice Doe once more, "there seems to have been no well-defined test of an actionable tort"- "precedents, established upon superficial, crude, and undigested notions; but no application of the general system of legal reason to this subject" 20 — leave the law in an inexcusably cluttered and unsystematic condition. The carrier of passengers, for example, is liable on one basis; the carrier of goods on another. The latter is an insurer, and he is not; he is liable without fault or proximate causation if the harm is done by a third party and not if by a vice of the goods by an unforeseeable act of nature, so that if robbers derail the train he is liable for goods which they steal, but not for those which perish through the delay, though all be without the carrier's fault. It is perfectly lawful to keep a savage animal, to say nothing of a cow; yet in the one case, as in the other, the owner finds himself burdened with liabilities imposed without reference either to fault or causation, binding him to pay for the consequences of the acts of others for all the world as if the original keeping were an unlawful act.

Some of these instances may work well, however they arose, to

18 Knowlton, J., in Ainsworth v. Lakin, 180 Mass. 397, 399-401, 62 N. E. 746, 747 (1902).

19 See also Davis v. Whiting, 201 Mass. 91, 87 N. E. 199 (1909).

20 Brown v. Collins, 53 N. H. 442, 445.

serve the ends of justice; and no doubt the notion of perfect symmetry is a pedant's dream. And yet, after making all allowance for precedent and practical confusion alike, such a result as Rylands v. Fletcher produces in our system is not tolerable, and those courts have done well who have flatly refused to have anything to do with it. The subject is one where too much weight should not be given to history, for the law of negligence in its present development is a very modern affair, rendering obsolete much that went before it. And at the present time a social interest of high importance requires that this subject be dealt with by the application of broad and simple general conceptions.21 This is a period of legislation, when it is alike inevitable and desirable that industry be subjected to detailed regulations of many kinds. Some of these, like the Workmen's Compensation Act, will be general in their application; others will deal in detail with special situations. The imposition of liability without fault will be a constant characteristic of such legislation. The apparent tendency in this respect to recur to earlier conceptions has been ably pointed out by Judge Smith.22 It is desirable that this should be so; for in civil, no less than in criminal relations, the need of proving fault may for practical reasons defeat the just purpose of the legislation. What cases call for such treatment will be a question of the nicest sort for the legislator, often admitting of no general answer, but depending on all sorts of considerations affecting the particular industry. He has a difficult structure to build; and it is idle to hope that it can be well built on a shifting foundation. That, however, is just what the courts supply to him unless the courts recognize some intelligible and practically workable theory as the basis of liability. A state of the law which leaves it indefinitely difficult to say in advance whether its

21 "Lord Mansfield, speaking many years ago against subtleties and refinements being introduced into our law, said they were encroachments upon common sense, and mankind would not fail to regret them. It is time, he says, these should be got rid of: no additions should be made to them: our jurisprudence should be bottomed on plain broad principles, such as, not only Judges can without difficulty apply to the cases that occur, but as those whose rights are to be decided upon by them can understand. If our rules are to be encumbered with all the exceptions which ingenious minds can imagine, there is no certain principle to direct us, and it were better to apply the principles of justice to every case, and not to proceed to more fixed rules." Best, C. J., in Strother v. Barr, 5 Bingham 136, 153 (1828). Compare also the remarks of Professor Ballantine, "Qualified Martial Law," 14 MICH. L. REV. 102, 103.

22 "Sequel to Workmen's Compensation Acts," 27 HARV. L. REV. 235, 344, 368.

rules will or will not hold the defendant responsible for harm which has resulted from his undertaking without his personal tort leaves the legislator in unreasonable doubt as to the material on which he is to work; and such a condition is the less excusable when the law has at its hands in the modern law of negligence the means of satisfying in the vast majority of cases the very needs which more eccentric doctrines are invoked to meet. One who is little disposed to adopt the view that the power of the legislature in this matter is taken away by the constitution may yet so far agree with the Court of Appeals of New York in Ives v. South Buffalo Ry. Co.23 as to the fundamental proposition of the common law which links liability to fault.

23 201 N. Y. 271, 293.

Ezra Ripley Thayer.

THE ALIENABILITY OF CHOSES IN ACTION

THE complete history of the law relating to the assignment of

choses in action remains to be written. The late James Barr Ames gave us a portion of it in his essay upon "The Inalienability of Choses in Action." In that essay he traced for us the development of the law relating to the subject in the common law courts of England, but not to any considerable extent its development in the English court of equity or in American courts of law and equity. In his essay the learned author also reached certain conclusions concerning the present state of the law relating to the alienability, or inalienability, of choses in action, these conclusions being based in part upon his historical survey and in part upon an analysis of the fundamental nature of choses in action. It is the purpose of the present paper to follow the development of this branch of our law from its earliest beginnings in English equity, so far as they can be ascertained, down to the present day. An attempt will also be made to present what is believed to be a more accurate analysis of the nature of ownership of a chose in action. It is believed that a wider historical survey and a more careful and thoroughgoing analysis will throw much additional light upon the matter and aid us in reaching a clearer understanding of the actual law now in force in our own country.

We start, of course, with the proposition that according to the original common law rule, which had a few exceptions enumerated by Mr. Ames, a chose in action was not assignable. At the outset let us first of all ask ourselves just what it is that the common law refuses to recognize as assignable. Perhaps we cannot do better than to take as the starting point of our discussion passages from the essay already referred to. The learned writer says:

"The rule (that a chose in action is not assignable) is . . . believed to be a principle of universal law. A right of action in one person implies a corresponding duty in another to perform an agreement or to make

1

3 SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY, p. 580; reprinted in LECTURES ON LEGAL HISTORY, p. 210.