tory negli A person is said to contribute to his own injury, when CHAP. X. he so acts as to become a 'co-operative cause' of it. For Contribuinstance, the owner of cattle which have been injured by a gence. railway train cannot recover from the Company if they have strayed on to the line through his own negligence in not shutting gates1. But the negligence of the sufferer is not held to be contributory, when the result complained of might have been avoided by the exercise of ordinary care on the part of the wrong-doer. The contributory negligence of a third party is no excuse of third party. for the negligence of the defendant 2. To this rule two exceptions are sometimes recognised. First, when the cause of action is derived from a negligent third party, which is the case where a parent or guardian sues for injury to a child, caused by its own carelessness 3; and secondly, where the plaintiff has 'identified himself' with the negligent third party, as where the plaintiff was a passenger in a vehicle the driver of which contributed by his negligence to the injury caused by the driver of another vehicle, who was the defendant in the action 4. This doctrine which is disapproved of in Scotland 5, and generally in the United States", has at length, after a currency of forty years, been repudiated by the English Court of Appeal 7. The Admiralty practice in cases of contributory negligence Apportionwas to apportion the liability between the plaintiff and defendant (the rusticorum iudicium), and this rule is now extended by the Judicature Act of 1873 to all cases of collision between two ships. In all other cases, according to Knight v. Gibbs, 1 Ad. and E. 46. The cases on remoteness of cause are 2 Burrows v. March Gas Co., L. R. 5 Ex. 67. 3 Mangau v. Atherton, L. R. 1 Ex. 239, but cf. Lynch v. Nurdin, 1 Q. B. 29. 4 Thoroughgood v. Bryan, 8 C. B. 115; cf. Armstrong v. Lanc. and Yorks. Ry. Co., L. R. 10 Ex. 47. Hobbs v. Glasgow Ry., 3 Ct. of Session Cases, Ser. 4. 215. 6 Webster v. Hudson Ry., 19 N. Y. Rep. 341. 7 The Bernina, 11 Prob. Div. 31; on appeal, 24 Jan. 1887. * For a review of the cases on the Admiralty practice, see 2 L. Q. R. p. 357. ment of negligence. CHAP. X. the law of England, a plea of the contributory negligence of the plaintiff is, if supported, fatal to his right of action 1. Waiver. Forfeiture. Public policy. Roman law seems to have arrived at the same result in practice, though on somewhat different theoretical grounds. The question is treated in the Digest not as one of causation but as one of set-off, in which the negligence of the plaintiff balances that of the defendant 2. Quod quis ex culpa sua sentit, non intelligitur sentire,' says Pomponius 3. 3. Volenti non fit iniuria.' If a right is waived, an act which would otherwise be an infringement of it becomes. permissible. Thus consent on the part of the husband was a good plea in bar of the old action for criminal conversation. So leave and licence' is an answer to an action for trespass, and a similar defence may be pleaded for what might appear to be a breach of covenant. The waiver must of course be given freely and with knowledge of the circumstances. 4. If a right is forfeited, or suspended, by misconduct, an act which would previously have been a violation of it ceases to be unlawful. An assault may be justified on the ground that it was committed upon a person who had forced his way into one's house and refused to leave it, or an arrest by the production of the warrant of a competent authority. 5. A right may also be suspended on grounds of public 1 See an able article by Mr. E. H. Crosby in the American Law Review for 1880, p. 770, and the notes to Ashby v. White, 1 Sm. L. C. In Illinois, and some other states, it seems that the courts weigh the question of ' f' comparative negligence,' allowing a plaintiff whose negligence is 'slight' to recover against a defendant whose negligence is 'gross.' It has lately been held that the plaintiff is bound not only to prove the negligence of the defendant, but also to disprove any contributory negligence of his own; Davey v. L. and S. W. Ry., 12 Q. B. Div. 70; Wakelin v. L. and S. W. Ry. in H. L. Dec. 1886; but see Dublin, &c. Ry. v. Slattery, L. R. 3 App. Cases, 1155. 2 This is sometimes described as 'Culpa-compensation.' See Pernice, Zur Lehre von den Sachbeschädigungen, p. 58. Dig. 1. 17. 203. So Ulpian: 'Si in loco periculoso sellam habenti tonsori se quis commiserit, ipse de se queri debere,' Dig. ix. 2. 11. pr.; and Paulus : 'Multa huiusmodi deprehenduntur quibus summovetur petitor si evitare periculum poterit.' Ib. 28, cf. S. R. i. 15. 3. The culpa of the plaintiff is immaterial when the defendant is in dolo. Dig. ix. 2. 9. 4. policy. So a trespass on land adjoining a highway may be CHAP. X. justified if the highway is impassable. The responsibility for an infringement does not always Responsibility. attach exclusively to the visible wrong-doer. In accordance with the maxims 'respondeat superior' and 'qui facit per alium facit per se,' a person is liable for those acts of his agents or servants which either were expressly authorised by him, or which were done by them in the course of their employment 1. By way of exception to this principle, it was long settled Common employby English law that 'one fellow servant could not recover ment. for injuries sustained in their common employment from the negligence of a fellow servant, unless such fellow servant is shown to be either an unfit or improper person to have been employed for the purpose 2.' The exception was, however, much restricted in its operation by a statute passed in 1880 3. motion. II. The origination, transfer, and extinction of rights, or, Rights in as the Germans would say, the connection and disconnection of Rechtsverhältnisse' with their Subjects, are due to Facts, but may be the result of either of the two species of Facts, i. e. either of an Event or an Act. A fact giving rise to a right has long been described as a 'title'; but no such well-worn equivalent can be found for a fact through which a right is transferred, or for one by which a right is ex 1 Mr. Justice Holmes thinks that the remedy was in early times against the immediate cause of damage, even inanimate, the owner of which was therefore bound to surrender it ('noxae deditio '), though in later times he was allowed to redeem the offending property by a money payment. This is reversing the order of ideas which looks upon the surrender as having been a substitute for payment. The Common Law, p. 16. 2 Feltham v. England, L. R. 2 Q. B. 36. This view, first held in the case of Priestly v. Fowler, 3 M. & W. I (1837), seems to be unknown on the Continent; see Parliamentary Papers, 1880, [c. 2607]. It is settled law in the U. S. See Murray v. S. C. Rail. Co., 1 McMullan (South Carol.), 385 (1841), and Farwell v. Boston and Worc. Rail. Co., 4 Metcalf (Massachusetts), 49. 3 43 and 44 Vict. c. 42. Cf. Prof. Pollock's art. in 1 Law Q. R. 207. * Cf. Savigny, System, ii. p. 374; iii. p. 1; Windscheid, Pand. i. p. 170. 5 Supra, p. 79. CHAP. X. tinguished. A new nomenclature was accordingly invented by Bentham, which is convenient for scientific use, although Facts. it has not found its way into ordinary language. He describes Dispositive this whole class of facts as Dispositive,' distinguishing as 'Investitive' those by means of which a right comes into existence, as Divestitive' those through which it terminates, and as Translative' those through which it passes from one person to another 1. Investi tive. 6 1. An investitive fact' finds its nearest equivalents in classical Latin in the terms iusta causa,' 'iustum initium,' and titulus.' In some, but not in all, cases, it is possible to detect two stages in the acquisition of a right, a more remote and a nearer, and it has been proposed to distinguish them by describing the 'causa remota' as titulus,' the 'causa proxima' as modus acquirendi.' Cavendum est ante omnia,' says Heineccius, 'ne confundamus titulum et modum adquirendi, quippe qui toto coelo differunt'; and he goes on to assert that dominium' can never be gained without the combination of a titulus,' giving a 'ius in personam' and a 'modus adquirendi,' which superadds the 'ius in rem.' These two stages are undoubtedly traceable in such a transaction as a Roman contract of sale followed by delivery, but they are by no means universally present in the acquisition even of real rights, and it is now admitted that the importance of the distinction has been much overrated 2. 6 A right may be conferred either by a direct act of the sovereign power, or by some fact which brings a particular instance within the operation of a general law. In the former case the investitive fact would be properly described as a 'privilegium,' in the latter case as a 'title.' The grant of a 1 His further distinction of Investitive' facts into 'collative' as conferring rights, and 'impositive' as imposing duties, and of 'Divestitive' facts into 'destitutive' or 'ablative' as extinguishing rights, and 'exonerative' as extinguishing duties, seems to be of less value. Cf. Works, iii. p. 189. 2 Hein. Recit. ii. tit. 2. 339. 'Der vergebliche Versuch, jede Rechtserwerbung auf einen iustus titulus und s. g. modus adquirendi zurückzuführen, ist nun allgemein aufgegeben.' Böcking, Inst. p. 44. CHAP. X. monopoly would be a fact of the former kind, the death of an ancestor, bringing into operation the law of inheritance, would be a fact of the latter kind, and would be an instance of what is described by some writers as 'Qualification,' i. e. the substitution by the course of events of a definite individual instead of an 'incerta persona' as the person entitled to a right 1. 2. A 'divestitive fact' puts an end to a right altogether; so Divestithe right of a tenant terminates with the expiration of his lease, and the right of a creditor is at an end when his debt has been paid. tive. tive. 3. Rights are more commonly transferred than altogether Translaextinguished, so that a divestitive fact is very often capable of being regarded, from another point of view, as investitive also. A conveyance of land not only terminates the rights. of the vendor, but also originates those of the purchaser. A fact which fulfils this double function is called by Bentham 'translative,' and the right which results from such a fact is said to be acquired 'derivatively 2.' Translative facts may be regarded from several points of view, and may be classified with reference to their voluntary or involuntary character, to the persons between whom the right passes, and to the extent of the right passed. and in voluntary. The fact may be involuntary, i. e. as far as the parties to Voluntary the right are concerned, it may be a mere external event, such as a bankruptcy, the death of an intestate, accession, adjudication, escheat; or it may be a voluntary act on the part of the person from whom the right passes, such as a contract of sale, or a testament, in which latter case it is called 'Alienation 3 : ' which again may be gratuitous, when the resulting acquisition is said to be 'ex lucrativa causa,' or for an equivalent. The distinction between voluntary and involuntary investitive 1 Austin, iii. pp. 93-98. * Puchta, Inst. ii. p. 325, points out that in all derivative acquisitions there is a legal relation between the auctor and the person acquiring; not merely a loss by one and gain to another, as in usucapio. 3 On the non-necessity of the assent of the transferee in alienation, v. infra, pp. 176, 210. |