■,w T_ gra. II Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By bis Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1975.R18 The law of negligence :being tlie first o • / /,A 3 1924 022 241 016 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022241016 cyf-^M^ A THE LAW NEGLIGENCE, THE LAW NEGLIGEN CE; BEING THE FIRST OF A SERIES PBACTICAL LAW TRACTS. EOBEET _gjA:MPBELL, M.A., ADVOCATE (SCOTCH BAK), ilf^OP LINCOLN'S INN, BARBI6TER-AT-LAW, LATE FELLOW OP TKINITy HALL, CAJIBKIDGE. LONDON: STEVENS AND HAYNES, BELL YARD, TEMPLE BAR, 1871. LONDON : PBINTED BY -WILLIAM CLOWES AND SONS, STAMFOBD STREET AND CHARING CROSS. TABLE OF OASES CITED. y.B. To the more recent cases references to the various reports are subjoined. Adams V. Lane. & Yorkshire Ey. Co., 3S L. J. C. P. 277 ; 17 W. E. 885 ...§ 79 Alder i\ New York Central Ey. Co., § 39, »., p. 37 Allen V. Cdrter, L. E. 5 C. P. 414... § 20, p. 21 V. Clark, § 45 V. L. & S. W. Ey. Co. (Q. B.), 19 W. E 127...§66,re., p. 59 AllLson V. Eayuer, §§ 47, 52 Alton V. The Midland Ey. Co., § 12, n., p. 13 Anderson v. Pyper, § 41, n., p. 39 Andrews v. Hawley, § 48 Atkinson v. Macreth, § 67, n., p. 60 Atterton ». Mangan. See Mangan v. Atterton Atwood S.Maude, L. E. 3 Cli. 339, §4, n., p. 5 Austin V. G. "W. Ey. Co., § 39, n , p. 36 V. iManchester, &c. Ey. Co. § 37 Axford V. Prior, 14 W.E.6H...§ 32, n., p. 29 Ayles V. S. E. Ey. Co., L. E. 3 Ex. 146; 37 L. J. (Ex.) 104; 18 L. T. (N.S.),832; 16 W. E. Ex. 709... § 42, n., p. 41 Baikie v. Chandless, § 47 Bailiffs of Eomncy Marsh v. Trinity House, § 78, p. 67, § 79 Barnes v. Ward, § 16 Bartonshill colliery cases, § 62, p. 56, §70 Becher v. Great Eastern Ey. Co., L. E, 5 Q. B. 241 ; 39 L. J. (Q. B.) 122 ; 22 L. T. (N.S.) 2D9 ; 18 W. E. (Q. B.) 627...§39, «.,p. 36 BLchcrvaise v. Q. W. Ey. Co., L. E. 6 C. P. 36, Nov. 21, 1870. Index, Interrogatories Bessant v. G. W. Ey. Co., § 17, n.,p. 18 Bilbee v. L. B. & B. C. Ey. Co., § 31 Bird V. Holbrook, § 82 Blackmail v. L.B. & S. C. Ey. Co., 17 W. E. 769...§41,p.40 Blair v. Bromley, § 67, «., p. 60 Blake v. Midland Ey. Co., § 39, «., p. 36 Blakemore v. B. & E. Ey. Co., § 88, p. 74 Blyth V. Birmingham Waterworks Co., § 1, p. 2 Bolch V. Smith, § 32, p. 29 Bolton, in re, § 45, p. 43 Bourne v. Gatliff, § 34, p. 31 Braoey v. Carter, § 52 Brand v. Hammersmith Ey. Co., § 25 Brass v. Maitland, § 37, p. 34, § S8, p. 74 Bremner v. Williams, § 41, n., p. 39 Bridges v. N. London Ey. Co., § 40, n„ p. 38 Briggs V. Jones, § 55, re., p. 50 V. Oliver, 35 L. J. Ex. 163 ; 14 L. T. 412; 14 W.E. 658... § 16 Brihtol & Exeter Ey. Co. v. Collins, § SG, n.,p. 33 British Columbia Saw-mill, &c v. Net- tloship, L. E. 3 C. P. 499 ; 18 L. T. (N.S.) 291 ; 16 W. E. 1046... § 80 Brock V. Kemji, § 20, p, 21 Brookes v. Courtenay, 20 L. T. (N.S.) 440...§32, re„p. 29 Brooks V. Day, § 54 Brumbridge v. Mafsey, § 45, p. 43 Biydon v. Stewart, § 73 Bulkeleyti.Wilford, §53 Bulmer v. Oilman, § 47 Burke v. Manchester, &o. Ey. Co., 22 L. T. (N.S.) 442; 18 W. E. (C.P.) 694... §41. p. 39 Burrows v. March Oas & Cuke Co., L. E. 5 Ex. 67 ; 39 L. J. (Ex.) 33 ; 22 L. T. (N.S.) 24; 18 W. E. (Ex.) 348... § 78, p. 07 Buxton V. N. E. Ey. Co., L. E. 3 Q. B. b TABLE OF CASES CITED. 549 ; 18 L. T. (N.S.) 795 ; 16 W. R. 1124.. .§42 Byine v. Boodle, § 16 Card V. New York and Harlem Ey. Co., § 83, n., p. 71 Castle v. Parker, 18 L. T. (N.S.) 367... § 55, ■«., p. 50 Caswell V. Worth, § 81 Chapman v. Chapman, L. E. 9 Eq. 276 ; 18W. E. Ch.583...§.W, p.48 V. EotUwell, § 32, p. 29 V. Van Toll, § 47 Chown V. Parrott, § 49 Christie v. Griggs, § 39, p. 36 City of Glasgow Union Ey. Co. i;. Hun- ter. Index, Damnum absque injuria Clara Killin, The, Adm. July 27, Aug. 2, 1870, 19 W. E. 25...§.'i6, m. Clark, Be (Fray v. Voules), § 47 Cleveland v. Spier, § 56 Cliflf V. Midland Ey. Co., L. E. 5 Q. B. 358; 22 L. T. (N.S.) 382; 18 W. E. (Q.B.)456...§§30, 31 Cockle V. S. E. Ey. Co., L. E. 5 C. P. 457 ; 39 L. J. (0. P.) 226 ; 22 L. T. (N.S.) 513; 18 W. E. (C. P.) 759... § 40, «., p. 38 Coe V. "Wise, L. E. 1 Q. B. 711 ; 14 W. E. 865 (Ex. Ch)...§ 17. n., p. 18, § 18, p. 20 Ooggs V. Bernard, §§ 10, 85, § 88, p. 74 Collins V. GriflSn, § 50 V. Middle Level Commissioners, L. E. 4 C. P. 279 ; 38 L. J. (C. P.) 236 ; 20 L. T. (N.S.) 442 ; 17 W. E. 229...§78, p. 67 Collis V. Selden, L. E. 3 C. P. 495 ; 16 W.E. 1170...§79,p. 68 Cook V. Broomhead, § 54, p. 48 • V. E. of Eosslyn, 'Be Hook, § 54, p. 48 Cooke V. Waring, § 27, n. Cory V. Thames Ironworks Co., § 80 Cooper V. Stephenson, § 45 Cotton V. Wood, §§ 56, 58, p. 53 Conch V. Steel, § 74, p. 64 Cox V. Leach, § 47 Craeknell v. Mayor & Corporation of Thetford, L. E. 4 C. P. 629.. § 25 Crafter v. Metr. Ey. Co., L. E. 1 C. P. 300; 35 L. J. (C. P.) 132; 11 Jur. 272 ; 1 Harrison & E. 164... § 41, p. 40 Craig V. Watson, § 54, p. 48 Crawford v. Cinnamond, § 55 Czech V. Gen. St. Nav. Co., L. R. 3 C. P. ]4;37L.J. (C.P.)3; 17L.T. (N.S.) 246; 16 W. E. ] 30... §37, p. 35 Daniel v. Metr. Ey. Co., L. E. 3 0. V. 216 &591 (Ex.Ch.); 37 L. J. (C. P.) 146; 16 W. E. 988.. .§ 41, p. 39, § 42, n., p. 41 Davidson v. Mackenzie, § 22 V. Monklands Ey. Co. § 81, p. 70 Davies, Be, § 55 V. Mann, § 83, p. 71 Dawson v. Manchester, &o. Ey. Co., 5 L.T. (N.S.) 682.. .§41, p. 39 De Eoufigny v. Peale, § 47 Dixon V. Wilkinson, § 54 , p. 48 Doel V. Sheppard, § 81 Doyle V. Kinahan, 17 W. E. (Ex.) Jr. 679...§83, m., p. 71 Duncan v. Findlater, § 18, n.. p. 20 Dundonald, E. of, v. Masterman, § 07, «., p. 60 Elkington v. Holland, § 47 Fair v. London & N. W. Ey. Co., 21 L. T. (N.S.) 326 ; 18 W. E. (Q. B.) 66. Index, Measure of Damages Farrant v. Barnes, § 88, p. 74 Farwell v. Boston Eailroad Corpn., § 71, p. 62 Feltham v. England, L. E. 2 Q. B. 33 ; 36 L.J. (Q. B.)14; 15W. E, 151... § 71, p. 62 Fisher v. Prowse, § 89, p. 75 Fisk w. Kelly, §54, p. 49 Fleming v. Orr, § 27 Fletcher v. Peto, § 71, n.. p. 62 V. Eylands, L. R. 1 Ex. 279, & 3 H. of L. 339, July, 1868... § 24 Floyd V. Nangle, § 50, p. 46, § 54, p. 48 Ford V. Cotesworih, L. E. 5 Q. B. 544, June 18, 1870... § 13, m. Fordham v. L. B. & S. C. Ey. Co., L. E. 3 C. P. 368; 37L.J. (C. P.) 176; 18 L. T. (N.S.) 566 ; 16 W. E. 865, & 17 W.E. 896...§55, m., p. 50 Forshaw v. Welsby, § 53 Francis v. Cockrell, L. E. 5 Q. B. 184, 501 (affd. Ex. Ch.) ; 39 L. J. (Q. B.) 113 ; 22 L. T. (N.S.) 203 ; 18 W. K. 668, 1205...§41,p.39 Franklaud v. Cote, § 47 V. Lucas, § 54, p. 49 Frayti.Voules, §§48, 49 Gallagher v. Humphery, § 58 Gardner v. Grace (nisi prius dictum), § 81, n. Gautret v. Egerton, L. E. 2 C. P. 371 TABLE OF CASES CITED. VU 36 L. J. (C. P.) 191 ; IG L. T. (N.S.) 17; 15 W. R. 03S...§32, p. 29 George e. Skivingtun, L. K. 5 Ex, 1 ; 39 L. J. Ex. 8; 21 L. T. (N.S.) 495; IS W. E. Ex. 118... § 79, p. 68 Gibbs, iStc. r. Mersey Doclis and Harbour Trustees, §§ 17, 18, § 19, n., § 75 Giblin v. McMulleu, L. K. 2 P. 0. Ap. 317, Dec., 1868... §§ 84, 85, 86, 87 Gibson i: Mayor of Preston, L. R. 5 Q. B. 218, Dec. 21, 1870... § 14, ,.., p. 16 Gladcuan v. Jobnson, 36 L. J. (0. P.) 153; 15 L. T.(N.S.) 475 ; 15 W. B. 318... §27, «., p. 2G Glover V. E. London Waterworks Co., 17 L. T. (N.S.) 475 ; 16 W. R. 310... § 28, «. Godefroy v. Dalton, §§ 46, 48 V. Jay, § 51 Goudier v. Cormaok, § 82 Graham v. ■ , 9 S. 543 . . § 45 Grant V. Caled. Ey. Co. § 31, § 81, ii. Gruy V. Pullen, § 75, p. 65 Great Northern Ey. Co. v. Harrison, § 39, «. Great Western Ey. Co. v. Blnke, §§ 40, 42 Great Western Ey. Co. v. Crouch, § 35, p. 32 Great Western Ey. Co. v. Talley, 19 W. E. 154 0. P. 23 L. T. CN.S.) 413...§39, «., p.34 Great Western Eailway of Canada, 1 Moo. P. C. (N.S.) 101. ..§41 Gregory v. Hill, § 71, n., p. 62 Grill V. Gen. Iron Screw Colliery Co., §11, §37, p. 35 Grote V. Chester & Holyhead Ey. Co., § 18, p. 20, § 41, p. 39 Hadley v. Taylor, L. E. 1 C. P. 53 ; 11 Jm-. 979; 13 L. T. (N.S.) 368; 14 W. E. 59... § 14, n. Hamilton v. Caledonian Ey. Co., § 39, n., p. 36 Hammersmith Ey. Co. v. Brand, § 25 Hart V. Frame, § 45 Harvey v. Mount, § 53 Hawkins v. Harwood, § 47 Hayne v. Ehodes, § 45 Belene, The. See Ohrloff v. Briscall, § 37, p. 35 Henkel v. Pape, Ex. Nov. 19, 1870, 19 W, E. 108; 23 L. T. (N.S.) 419; L. R. 6Ex. 7...§36, TO. Heugh V. London & N. W. Ey, Co,, L, E, 5 Ex. 51 ; 39 L. J. (Ex.) 48 ; 21 L. T. (N.S.) 676.. .§ 35, p. 32 Hibbs V. Ross, L. R. 1 Q. B. 534 ; 14 W. R. 914...§37,m., p. 35 Higgs V. Mayjiard, 14 L, T, (N.S.) 334 ; 14 W. E. 610.. .§ 16 Hill V. Allen, § 52 V. Ftatlierstonhaugh, § 52 V. New River Co., 18 L. T. (N.S.) 555,.,§78, p. 67 Hoby V. Built, § 47 Hoey V. Dublin & Belfast Ey, Co., 18 W, R. C. P. Ir, 930... § 69, «., p. 61 Hoiliday v. St, Leonard's SUorediteli, § 18, n., p. 20 Holm' 3 V. Clarke, 6 H. & N. 349, & 7 U, & N, 937 (Ex, Ch,), § 73 V. N, E, Ey, Co,, L, R. 4 Ex. 254 ; 38 L. J, Ex. 161 ; 20 L, T, (N. S.) 616,.,§32, p, 29 Hook, Ee (Cook v. E, of Rosslyn), § 54, p, 48 Hudson ii, Baxendale, § 35, p, 32 Hunter v. Caldwell, § 47 V. Walters, § 55, n., p, 50 Huutley v. Bulwer, § 47 H^am3 v. Webster (Ex. Ch,) L. E. 4 Q, B, 138; 38 L. J, (Q, B,) 21; 17 W. R, 232,. .§ 28, n., § 55, n., p. 50 Indermaur v. Dames, Ex, Ch. L, E. 2 C, P. .311; .36 L. J. C. P. 181; 16 L. T, (N.S,) 293 ; 15 W, B. 434... § 32, p. 29 Ingalls V. Bills, § 41, »., p, 39 James v. G. W. Ey. Co., L. E. 2 C. P. 634, n., § 31 Jefferys v. Marshall, Nov. 14, 1870, 19 W.R, 94...§55, «., p. 51 Joel V. Mo risen, § 67 John V. Bacon, L. R. 4 C. P. 437 ; 18 W. R. C. P. S94...§42, p. 41 Jones V. Festiniog Ry. Co., L. R. 3 Q, B, 733; 18 L, T. (N.S,) 902... § 25 Joyce ». Capel, § 66, »., p, 59. Kearney », Lon. Brighton & S. C, Ey, Co,, L, E, 5 Q, B, 411 ; 39 L, J, (Q, B.) 200; 22 L, T, (N,S.j S8u; 18 W. R. (Q. B.) 1000... § 15 Kelly V. Mayor of New York, § 75, n. Knights V. Quarles, § 45 Laidler v. Elliot, § 47 Lancroni v. Drury, § 37, p. 34 Lane v. Cotton, § 23, p, 23 Langridge v. Levy, 2 M, & W. 519 & 4M. & W, 337..,§79 vm TABLE OP CASES CITED. Leishraaii v. Lon. Brighton & S. 0. Ey. Co., Ex. 19 W. E. 106... § 41, p. 40 Leuw V. Dudgeon, 37 L. J. (.0. P.) 5 ; 17 L. T. (N.S.) 145 ; 16 W. R. 80... § 37, p. 35 Levy V. Laiigridge, § 79, p. 08 Lewis V. Samuel, § 52 Lillie, Dec. 13, 1816, F. C, § 45 Lion, The, § 39, n., p. 34 Liquidators of Western Bank v. Douglas, &o., § 55, p. 49 Lister v. Ferryman, § 55, u., p. 51 Lloyd V. Harrison, L. 11. 1 Q. 13. 502, May9, 1866...§20, p. 21 Lockliart v. Irish N. W. Ky. Co., §17, u., p. 18 Lons V. Orsi, § 47 Lord V. Midland Ry. Co., L. E. 2 C. P. 339 ; 36 L. J. (0. P.) 170 ; 15 L. T. 576 ; 15 W. E. 405... § 37, p. 34 Luke V. Brydges, § 54 Lunt V. Lon. & N. W. Ey. Co., L. E. 1 Q. B. 277 ; 35 L. J. (Q. B.) 105 ; 12 Jur. 409 ; 14 L. T. (N.S.) 225 ; 14 W.E.497...§29, p. 27 Lynch v. Nm-den, § 82 McCarthy v. Young, § 60, p. 55, § 8S, p. 74 Mclntyre v. Carmichael, § 27, »., p. 26 Manchester, &c. Ey. Co. v. Wallis, § 17, n., p. 18 Mangiim v. Brooklyn, § 81, m. Mangan v. Atterton, L. R. 1 Ex. 239 ; 35 L. J. Ex. 165 ; 12 Jur. 489 : 14 L. T. (N.S.) 411; 14 W. E. 771... § 81, p. 70 Martin v. G. I. Peninsula Ey. Co., L. E. 3 Ex. 9 ; 37 L. J. (Ex.) 27 ; 17 L. T. (,N.S.)349...§37, p. 35 Matcliett V. Parker, § 54, p. 49 Matthews v. Discount Corporation, L. E. 4 0. P. 228... §55, m., p. 50 Matthews v. Livesley, § 54, p. 49 Mersey Docks, &c. Trastees v. Peuhal- low & Others ; the Same v. Gibbs & Otliers, L. E. 1 H. of L. 93 ; 14 L. T. 677; 12 Jur. 571; 14 W. R. 872... § 17, p. 19, § 18, § 19, n., § 75, p. 65. Metzenburg v. Highland Ey. Co., § 35, p. 32 Mitchell V. Orasweller, § 66 Moifatt V. Bateman, L. R. 3 P. C. Ap. 115; 6 Moo. P. C. (N.S.) 369... §§ 59, 60, 61, 62 Montriou V. Jefferys, § 47 Morgan v. Vale of Neath Ry. Co., L. R. 1 Q. B. 149 ; 35 L. J. (Q. B.) 23 ; 13 L. T. (N.S.) 564; 14W.R. 144... §71, p. 62 Munroe v. Leach, § 56 Murray v. Cunie, Nov. 14. 1870, C. P. 19W.E. 104; L.E. 6C.P. 24...§37, p. 35, § 62, n., p. 56, § 72 Muscliamp v. Lancaster & Preston Ey. Co., § 36 Nicholson v. L. & Y. Ey. Co., § 32, p. 29 Norris v. Kohler, § 66, n., p. 59 Norton v. Cooper, § 50, p. 46 Nye V. Macdonald. Index, Notary Ohrldff ij. Brisnall, The Belene, L. R. 1 P. C. Ap. 231 ; 14 L. T. (N.S.) 873 ; 15 W. E. 202... § 37, pp. 34, 35 Overend, Gurney & Co. ■!). Gurney, &o., 20 L. T. (N.S.) 652 ; 21 L. T. (N.S.) 73 ; 17 W. E. 652, 1115.. .§54, p. 48 Pack V. Mayor of New York, § 75, n. Paddock V. N. E. Ey. Co. (Ex. Ch.), 18 L.T. (N.S.)60...§32, «., p. 29 Page V. Defries, § 66, n., p. 59 Parker v. G. W. Ey. Co., § 35, p. 32 V. Rolle, § 45, pp. 42, 43 Parnaby v. Lancaster Canal Co., § 18 Paterson v. Wallace, § 73 Peacock v. Young, 21 L. T. (N.S.) 527 ; . 18 W. R. Q. B. 134... § 79, p. 68 Pearson v. Pluoknett, C. P. 20 L. T. (N.S.)662...§55, »., p. 50 Penton d. Murdoch, 22 L. T. (N.S.) 371 ; 18 W. E . (C. P.) 382. . .§ 88, p. 74 Philadelphia Ey. Co. v. Hagan, § 31 PioUard v. Smith, § 75, p. 65 Pickford v. Grand June. Ey. Co., § 35 p. 82 Pitt V. Galden, § 47 Playford v. United Kingdom Telegraph Co., § 36, n., p. 33 Pollock V. Cassidy, § 73 Potter V. FauUiuev, § 69, n., p. 61 Potts V. Dutton, §§ 45, 52 Poulsum V. Thii-st, L. E. 2 C. P. 449 ; ,36 L. J. (C. P.) 225 ; 76 L. T. (N.S.) 324 ; 15 W. E. 766... § 55, n., p. 50 Poulton V. S. W. Ey. Co., L. E. 2 Q. B. 534; 17 L.T. (N.S.) 11; 16 W. E. 309...§66, «., p. 59 Praeger v. Bristol & Exeter Ey. Co., § 40, TO., p. 38 Prestwich v. Poley, § 49 Purves V. Landell, § 51, p. 46 Pym V. G. N. Ey. Co., 2 Fost. & Fin. 619.. .§39, »., p. 36, § 41, p. 39 TABLE OF CASES CITED. IX Quebec Marino lusurance Co. v. Com- mercial Bank of Canada, L. K. 3 P. 0. Ap. 240... § 37, p. 35 Eead <. Edwiirdes, §27, n. V. G. E. Ey. Co., 18 L. T. (N.S.) 82 ; 16 AY. K. 1010... § 30, «., p. 3G Redhead r. Midland Ey. Co., L. E. 2 Q. B. 412, & 4 Q. B. ,879 (Ex. Cb.) ; 38 L. J. (Q. B.) 169 ; 20 L. T. (N. S.) 628 ; 17 W. E. 741. ..§ 39, p. 36, § 40 Eeece v. Elgby, § 47 Reg. V. Stevens, L. E. 1 Q. B. 702... § 67, n., p. 69 Bex c. Tew, § 47 !'. Pease, § 28 V. Scrivenei's' Co., § 21, p. 22 Eeynolds v. S. W. Ey. Co., § 40, n., p. 38 Eice r. Eice, § 55, m., p. 50 Eichardson v. Metr. Ey. Co., 18 L. T. (N.S.) 721; 16 W. E. 909.. .§ 55, n., p. 50 Ridley v. Tiplady, § 54, p. 48 Eigg V. Manchester, kc. Ey. Co., 14 W. E. 834...§41, p. 40 Bobbins v. Jones. 15 C.B.(N.S.) 221... § 89, p. 75 Eomney Blarsb v. Tiinity House, L. E. 5 Ex. 204 ; 39 L. J. ( Ex.) 163 ; 22 L. T. (N.S.) 446; 18 W. E. 869...§ 78, p.G7 Booth V. N. E. Et. Co., L. E. 2 Ex. 173; 36 L. J. (Ex.) 83; 15 L. T. (X. S.) 624 ; 13 W. E. 695.. .§ 37, p. 34 Eutbin, Coipoiation of, v. Adams, §50, p. 46 Bylands v. Fletcher, L. B. 1 Ex. 279, & 3 H. of L. 330, July, 1868.. .§ 24 Sadler v. Henlock, § 75, n. St. Aubyn v. Smart, § 67, n., p. 60 Sandeman v. Scurr, L. B. 2 Q. B. 86 ; 36 L. J. (Q.B.) 58 ; 15 L. T. (N.S.) 608 ; 15 W. E. 277... § 37, n., p. 35 Sqott V. Liverpool Dock Co., § 16 Senior v. Ward, § 81 Se'randat v. Saisse', § 77, p. 66 Seymour v. Maddox, § 32, n., p. 29 Simmons v. Boss, § 50, p. 46 Siner & Wife v. G. W. Ey. Co. (Ex. ■ Cb.) L. B. 4 Ex. 117; 38 L. J. Ex. 67 ; 20 L. T. (N. S.) 114 ; 17 W. E. 417...§40, »., p. 38 Shaw V. Arden, § 52, p. 47 Shepherd v. Bristol & Exeter Ey. Co., §36 Shields v. Edin. &c. Ey. Co., § 66, n. Shoebottom v. Egerton, IS L. T. ,N. S.^i 889.. .§ 17 Singleton v. E. C. Ey. Co., § 81, § 83, »,., p. 71 Skelton V. L. & N. AV. Ey. Co., L. E. 2 C. P. 636 ; 36 L. J. (C. P.) 249 ; 16 L. T. (N.S.) 563; 15 W. E. 925... §§ 30, 82 Skipp V. E. C. Ev. Co., § 74, p. 64 Smith V. Baxter," 15 L. T. (N.S.) 294... § 55, n., p. 50 V. G. E. Ev. Co., L. E. 2 C. P. 4 ; 26 L. J. (C. P.) 22 ; 15 L. T. (N.S.) 246 ; 15 W. E. 131. ..§ 27, it., p. 26 V. Howard, Ex. 22 L. T. (N.S.) 130...§ 69, n., p. 61 V. Lon. & St. Kntherine Docks Co., L. E. 3 C. P. 326 ; 37 L. J. (C. P.) 117 ; 18 L. T. (N.S.) 403; 16 W. E. 72S...§32, p. 29, §33, p. .30 V. L. & S. W. Ey. Co.. L. E. 5 0. P. 98 ; 39 L. J. (C. P.) 68 ; 21 L. T. (N.S.) 663: IS W. E. C. P.) 343. Aflid. Ex. Ch. Nov. 30, 1870 ; L. R. 6 C. P. 14 ; 19 W. E....§ 78, p. 2, § 1 V. Thackerab, § 17, «., p. 18 Snugly V. Glasgow & Londondeny St. Packet Co., 16 W. E. 483.. .§ 73, n. Southcote V. Stanley, § 32, p. 29, § 33, p. 30, § 58, p. 52, 53 Spencer, Be, 21 L. T. (N.S.) 808; 18 W. E. (Ch.) 240... § 45, p. 43, § 54, p. 48 Stannard v. UUithome, § 45 Stapley v. Lon. B. & S. C. Ey. Co., L. E. 1 Ex. 21 ; 35 L. J. (Ex.) 7 ; 4 H. & C. 93 ; 11 Jur. 954 ; 13 L. T. (N.S.) 406 ; 14 W. E. 132... § 29, p. 27 StUes V. Cardiff Sim. Nav. Co., § 62, •/.., p. 56 Stokes V. Trumper, §§ 47, 52 Storey v. Asbton, L. E. 4 Q. B. 476, & 38 L. J. (Q. B.) 223 ; 17 W. E. (Q. B.) 727... § 65 Stubley v. Lon. & N. W. Ey. Co., L. E. 1 Ex. 13 ; 4 H. & C. 83 ; 35 L. J. (Ex.) 3 ; 11 Jur. 954 ; 13 L. T. (N. S.) 376 ; 14 W. E. 133... §§ 29, 81 Submaiine Telegraph Co. v. Dickson, §56 Sullivan v. Waters, 14 Irish C. L. B. 460 ...§32, p. 29 SwanneU v. Ellis, § 47 Swinfen -o. Lord Chelmsford, § 21, »., p. 22 Taylor v. Gorman, § 45 Thetis, The, § 68 TABLE OF CASES CITED. Thomas «■. Ehymnev Ey. Co., L. R. 5 Q. B. 226 ; 39 L. j. (Q. B.) 141 ; 22 L. T. (N.S.) 297 ; 18 W. K. (Q. B.) 668... §42 Thomson v. N. B. Ey. Co., § 18, n., p. 20 Todd V. Flight, § 14, n. Treson v. Pearman, § 45 Tuflf V. Warman, § 83, p. 71 Tunney v. Midland Ey. Co., L. E. 1 C. P. 291. ..§ 71, p. 62 Turner « S. E. Ey. Co., 17 W. E. 1090 ...§37, p. 34 Turquand v Marsb:il], L. E. G Eq. 112, April 18, 1868.. .§ 54, p. 48, § 55, p. 50 United Service Compv., Johnston's claim, Nov. 21, 1870, Chancery M. E. 19 "W. E.89...§86, n. Vauglian v. Taff Vale Ey. Co , §§ 25, 28 Virginia, &o. Ey. Co. v. Sanger, § 18, p. 20 Waite V. N. E. Ey. Co., § 81 Wallcer v. Midland Ey. Co., 14 L. T. (NS.) 796... §'29, p. 27 V. S. E. Ey. Co., L. E. 5 C. P. 640 ; 18 W. E. (C. P.) 1032... § G6, »., p. 59 V. Midland Ey. Co., 14 L. T. (N.S.) 796... § 29, n. Warburton v. G. W. Ev. Co., L. E. 2 Ex. 30; 36 L. J. (Ex.) 9; 15 L. T. 361; 15 W. E. 108... § 72 Watling V. Oastler, January 25, 1871, Ex. Index, Master Watts V. Porter, § 45 Welfare -o. Lon. B. & S. C. Ey. Co., L.E. 4 Q. B. 693 ; 38 L. J. (Q. B.) 241 ; 20 L. T. (N.S.) 743 ; 17 W. E. 1065.. .§§ 16, 75 West V. Brockport, § 17, n., p. 18 Western Bank, Liquidators of, v. Doug- las, &o., § 55 Whatman v. Peaison (in some reports called Whitemore v. Pearson). L. E. 3 C. P. 422 ; 37 L. J. (C. P.) 156 ; 18 L. T. (N.S.) 290; 16 W. E. 649... §§ 64, 67 Whittaker v. Manchester, &o. Ey. Co., C. P. 22 L. T. (N.S.) 545... § 40, ),., p. 38 Wilkinson v. Fairrie, 1 Hurlst. & 0. 633 ...§32, n., p. 29 William Inman ■», F. Eech & Others, L. E. 2 P. C. Ap. p. 25... § 83, p. 71 Wilson V. London Italian, &c. Co., L. E. 1 C. P. 61, Nov. 14, 1865... § 34, p. 31 V. Merry, §71, p. 62, § 73 Winterbottom v. Lord Derby, L. R. 2 Ex. 316 ; 36 L. J. 194 CEx.)...§ 14, „., p. 16 V. Wright, § 12, n., p. 13, 14 Withingtnn v. Tate, § 67, «., p. 60 Wuod«. Wood, §45, p.43 Woodger V. G. W. Ey. Co., L. E. 2 C. P. 318; 36 L. J. (C. P.) 177 ; 15 L. T. (^f.S.) 579 ; 15 W. E, 383.. .§ 80 Worth V. Gilling, L. E. 2 C. P. l...§ 27, »., p. 26 Wjiglit V. Maiden & Melrose Ey. Co., § 81, n. V. Pearson, § 27, n., p. 26 Zimz V. S. E. Ey. Co., 38 L. J. 209 ; 20 L. T. (N.S.) 873.. .§ 37, p. 34 ADDENDA. It has been decided that a Local Board, in their capacity of surveyors of high- ways, are liable to an action for misfeasance by the negligence of their servants leaving a heap of stones in the road without guard or light. Foreman v. Mayor, &c., of Canterbury, January 27, 1871, Q. B. In Me United Service Company, referred to § 86, »., p. 72, the Lords Justices on appeal, January 31, 1871, held that the bank were bailees for reward, and were guilty of negligence ; but they held that tlie damages claimed being costs of a Chancery suit occasioned by the negligence were too remote. KECENT WOEKS AND ARTICLES CITED IN THIS ESSAY OR REFERRING TO THE SAME SUBJECT. American Law Review — Article on Contributory Negligence of an Infant. Boston, Apiil, 1870. Burden of Proof, ibid., January, 1871. Dicey on Parties— Treatise on the Rules for the Selection of Parties to an Action. A. V. Dicey, 1870. Hay's Decisions of tlie Supreme Courts of England and Scotland on the Law of Liability in Cases of Accidents and Negligence. Guthrie Smith on Law of Reparation. Journal of Jurisprudence, Edinburgh — Proof of Negligence, Res ipsa loquitur. October, 1870. Translation of tlie Title of tlie Pandects AJ Legem Aquilia. November and December, 1870. Saunders' Law of Negligence — Treatise on the Law applicable to Negligence, by T. W. Saimders. 1871. Shearman and Redfield— Law of Negligence. Treatise on the Law of Negligence. Thomas G. Sliearman and Amasa A. Redfield. New York, 1870. Smiths Leading Cases. 6th edition. Coggsy-BerHardani Ashhij y.Wliite. 1870. THE LAW OF NEGLIGENCE. The substance of the following essay was composed in the form of lectures or readings for pupils, to relieve the dryness of our studies on the law of real property. My endeavour was to awaken interest by reviewing the latest phase of judicial opinion on a familiar subject, and at the same time by digesting and harmonizing the law relating to that subject, so that (if possible) new decisions may seem to illustrate old principles, or that the extent and direc- tion of the change introduced by each decision may be correctly estimated. The point of view taken in the following pages is that of an English lawyer. But I intend to treat of those sub- jects the principles of which are substantially common to all parts of the United Kingdom, and are, indeed, more or less adopted by all countries whose legal system in- corporates the results of Latin civilization. I shall there- fore, while drawing chiefly from the sources of English law, freely avail myself of the best materials from other quarters. I shall also endeavour to use language freed from the technicalities of English procedure, and in- telligible, I hope, to laymen as well as to lawyers practis- ing at nisi prius. THE LAW OF NEGLIGENCE. Doctrine of negligence most familiar to Common Law Courts. A definition given by Baron Alder- son applying to cyrdinary " Negligence ' as used by English law- yers includes heedlessness and rashness. § 1. The first topic of which I shall treat is more familiar to our Courts of Common Law than tp any other of our Courts, unless it be (in one class of cases) the Court of Admiralty. The subject may be named " the law of Eeparation or civil redress for damage by Negligence ;" or, for the sake of brevity, "the law of Negligence." " Negligence " is a term which has been of late, in the cur- rent language of the forum, applied to cases of a veiy wide and heterogeneous class. It has been described as " the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. [Alderson, B., in Blyth v. Birmingham WaterworJcs Company, cited in 8mith v. L. & S. W. By. Co., L. E. 5 C. P. 102.] On this dictum, it must be observed that the term "negligence" does not properly denote the omission or act itself, but the state of mind of the person who is guilty of the act or omission. But the description, though having no pretension to accuracy as a definition, may serve to indicate the class of cases which are usually grouped imder the term "negligence" in our common legal parlance. And the negligence indicated in this description is commonly designated " ordinary negligence " by way of distinction to that negligence which is pro- perly indicated, as I shall show further on, by the terms euljoa lata and culpa levissima. The description inclu<]es not only acts which result from negligence, in the usual and popular acceptation of the term, but also those acts or omissions which result from states of mind distinguishable from negligence, and more properly described by the terms heedlessness and rashness. The shades of difference between the states of mind implied by these words in their ordi- nary and popular sense are well analysed by Austin in liis twentieth lecture (p. 144, 3rd Ed.). They may be shortly rioted as follows : — In cases of negligence (in the popular sense of the word), the person adverts not to the act which it is his duty to do. ROMAN LAW — CLASSICAL JURISTS. 3 In cases of heedlessness, he adverts not to the conse- quences of the act which he does. In cases of rashness, he adverts to those consequences of the act ; but, by reason of some assumption, which he examines insufficiently, he conchides that those conse- quences will not follow the act in the instance before him. All these states of mind may be included in the term Bach distin- inadvertence. Each is clearly distinguishable from inten- f^^^J'[,^t tion ; and they are analysed by Austin, in connection with equally with intention, as being, equally witli intention, grounds for ^ounds"of imputing guilt to the author of the act or omission. imputability. It must be further observed that negligence, heedless- ness, and rashness, as well as intention, properly describe a state of mind, and that no one of them can of itself constitute injury or breach of duty. But one or other of these four states of mind is a condition precedent to an injury or breach of duty being committed. The opposites to negligence — heedlessness — rashness — Negligence respectively may be named " diligence "— « heed "— « cir- ^^^gence" cumspection." But, vnth a view to conforming to the The greater language familiar to English lawyers, I shall in this requiredfthe essay include the three species of inadvertence under the '^^^ *^e Negli- 1^ cc-KT ^^ » J v, X' J. i. g^"00 which common name ol " JNegligence ; and by way oi contrast, will suffice for I shall include the last three under the term " Dili- liability. gence." Negligence then, is the want of diligence. And the greater the diligence required by law in the particular case, the smaller is the degree of negligence which will be sufficient to make the act or omission an injury. § 2. Negligence, in the wide sense which I have just Tei-ms used by given to the word, is by the Eoman lawyers termed ^"J!lc|f;^^a_ " Culpa," and is distinguished from " Bolus," which, used in Dolm—Cmus. collocation with culpa, signifies intention, and nothing more. In the same collocation the word casus (or acci- dent) is by the Eoman lawyers used to indicate some fact which neg3.tives the presumption that the occurrence happened either through culpa or dolus. Culpa lata is Culpa lata. great, or gross negligence. Culpa levis, a slighter degree of Culpa levis. b2 THE LAW OF NEGLIGENCE, Diligentia. Culpa levis- sima. Degrees of dilisenoe or negligence, and criteria to distinguish the oases lo which they respectively apply. Rules (Eoman law). 1. Bene- fit of obligor — Dolus. 2. Benefit of both — Dolus t Culpa. 3. Benefit of obligee— -DoZ. et Gulp, et Diligentia. negligence, opposed, by way of comparison, to culpa lata. Diligentia, or exacta diligentia, is the kind of diligence required where something even less than oul;pa levis would infer guilt. And, in order to express the degree of culpa correlating to exacta diligentia, the modern civilians have employed the term culpa levissima (a). § 3. Bearing in mind the meaning of these expressions, and collating the passages of the Corpus Juris where they occur, it is not difficult to recognise the principles upon which the great practical lawyers of the classic period were wont to weigh the degrees of diligence or negligence forming the criterion of liability in the various trans- actions of life. Tlie general principles are these : — 1. Where the contract or transaction out of which the duty arises is for the benefit solely of the person to whom the duty is owed, the person owing the duty is liable for dolus (or intention), and on no other account. 2. Where the contract or transaction out of which the duty arises is for the mutual benefit of both, then he is liable for eu2pa. 3. Where the contract or transaction out of which the duty arises is for the benefit solely of the person owing the duty, he is bound to the utmost (that is to say to an extraordinary degree of diligence), and he is liable for negligence however slight. Instances— § 4. 1. Of the first kind is the duty arising out of depo- 1. Depositum. g^^^^^ ^ vioi'd which, as used by the Eoman lawyers, pro- perly denoted the delivery of a thing to a person who gratuitously undertakes to keep it for the depositor. [Inst. in. 14, § 3 ; D. xin. 6. 5, § 2 ; D. l. 17. 23.] 2. The con- 2. Of the second kind are the duties arising out of the lal in „,„„^ ' ' ' business. tracts usual in ^^Qj-g usual contracts : — e.g., deposit when payment (merces) (a) The only use of culpa levissima that I am aware of, by the classical jurists, is iu connection with the lex Aquilia in D. ix. 2, 1. 44 pr. " In lege Aquilia et levissima culpa venit." The analogy to this in English law we shall see in the class of cases arising out of dangerous tenements, &c. Of. Warukcenig. Lib. iii. cap. 1, § 424. ROMAN LAW — CLASSICAL JURISTS. 5 is received for the care of the thing. This was properly designated by the Eoman lawyers not depositum but a species of locatio. [D. xvi. 3. 1, § 9, eod. tit. 5, § 2.] Other examples are pledge, sale, locatio-conductio (generally), partnership, and indeed every contract or transaction where benefits accrue on both sides, or, as we sliould say in English law, where valuahle consideration passes to the person promising, amongst other things, the diligence in question. [D. xiii. 6. 5, § 2 ; D. xiii. 7. 13, § 1 ; D. xviii. 6. 11 ; D. L. 17. 23.] Within this large class of cases many shades of difference must necessarily occur in the kind and degree of diligence exacted, or of the negligence punish- able by law. Such degrees of diligence or negligence must be estimated according to. the circumstances of the case. [D. XIII. 6. 18 pr.J For instance, where the matter is one of mere common sense, the diligence required is such as " homines frugi et diligentes prestare debent. [D. xviii. 6. ll.j But if a matter upon which skilled labour is hired, want of the necessary skill is reckoned negligence. [D. XIX. 2. 9, § 5.] And where the contract is partner- ship, the diligence required from the partner is that which he is accustomed to bestow upon his own affairs. For says the law, if a man take to himself a negligent partner, he has himself to blame. [Inst. iii. 25. 9.] (a) 3. Of the third kind is the duty of care on the part of 3. Commoda- the borrower, arising out of commodatum or gratuitous *""*• loan. In this case it is said, " Talis diligentia prsestanda est qualem quisque diligentissimus paterfamilias suis rebus adhibet, ita ut tantum eos casus non prsestet quibus resisti non possit, veluti mortes servorum, quae sine dolo et culpa ejus accidunt," &c. [D. xiii. 6. 18 pr.] And again: " At is, qui utendum accepit exactam diligentiam custodi- (a) The eame principle has been applied by an English Court of Equity to a claim by A., arising between partners (A. & B.l on the ground of A.'s negligence and incompetence, it being proved tliat before entering into partnership A. had ample opportunity of estimating B.'s fitness for the business. \Atwood v. Mcmde, L. E. S Ch. 369.] The principle of " dili- gentia quam in suis rebus," &c., applied also in the Romaa law to res dotales and to the qiiasi-partnership of co-lieir.s. D. xxiii. 3. 17 pr. ; D. xx. 2. 2.'), § 2li, 6 THE LAW OF NEGLIGENCE. endfe rei prsestare jubetur, nee sufficit ei tantam diligen- tiam adhibuisse, quantam in suis rebus adhibere solitus est si modo alius diligentior poterit earn rem custodire. Sed propter majorem vim, majoresve casus non tenetur, si modo non hujus ipsius culpa is casus intervenerit. Alioqui, si id, quod tibi commodatum est, peregre tecum ferre ma- lueris, et vel incursu hostium prsedonumve, vel naufragio amiseris, dubium non est quin de restituenda ea re tene- aris." [Inst. in. 14. 2, e/. D. xiii. 6. 5—13.] Even if the transaction, although called comwwdat'wm (and therefore nominally gratuitous), is one from which the lender is to receive benefit, the duty of diligence will be reduced to one of the second class, that is to say, the borrower will be liable simply for ewZpa,- or negligence, of an ordinary kind and degree. [D. xiii. 6. 18 pr.] Under the same head, though on a somewhat different piinciple, may be classed the obligations laid upon persons in the use or enjoyment of their' own property by the lex Aquilia, the principle of which was to presume injury from the fact of damage to others while exercising their lawful rights. Here, as we have seen, culfa levissima inferred liability. [D. ix. 2. 44 pr. j Or, what amounted to the same thing, cwZpa was presumed, and nothing could rebut the presumption but proof of casus, that is to say, accounting for the occurrence by a cause against which no human care or foresight would have availed. Extension of 1st class to culpa lata, ■which is by law lequipa- rata dolo. § 5. Eecurring. to the 1st class of cases, namely, where the contract or transaction is for the benefit solely of the person to whom the duty of diligence is owed — I have stated broadly that the other party is liable for dolus (or intention), and on no other account. But this must be taken with an important qualification. The Koman lawyers considered cul;pa lata (i.e., great or gross negli- gence) equivalent to dolus : not that (as Austin seems to suppose, p. 441, &c.) they confounded the state of mind denoted by the word dolus (intention) with that indicated by cul^a (negligence) ; but, by a convenient fiction, they MODERN CIVILIANS— PROFESSOB ERSKINE. 7 held a person committing or omitting an act through gross negligence liable as if committing or omitting with inten- tion. [Puchta Institutionem cclxxviii. ; D. iv. 16. 213, § 2. eod. tit. 226 ; D. xi. 6. 1. § 1 ; D. xvi. 3. 32.] § 6. Substituting euljaa lata (or gross negligence) for dolus (or intention) we arrive at the three degrees of diJigenceor negligence formulated by some of the modern civilians, and adopted by Professor Erskine in his great treatise on the law of Scotland. Erskine states the principle as follows : — "What degree of negligence throws the blame upon Rnles as stated any party contracting:, so as to make him liable for the ^7 .■|>.'"i«™ ., . civilians, and damage sustained by the other party ? This the Romans in particular have settled by the following general rules :— Where the pLkSe!''""' contract is entered into for the benefit of both parties, each contractor is bound to employ a middle soi't of dili- gence, such as a man of ordinary discretion uses in his affairs ; the opposite of which is called culj>a levis, or simply culpa. Where only one of the two parties is benefited by it, such party is bound in that degree of dili- gence by which one of the most consummate prudence conducts himself; the neglect of which is called culpa levissima; and the other party who is no gainer by the contract is not accountable for any proper diligence, he is liable only de dolo vel lata culpa ; i.e. for dole [D. xiii. 6. 5. § 2, eod. tit. 18 pr.J or for gross omissions which the law construes to be dole. [D. L. 16. 226.] Where one bestows less care on the subject of any contract which re- quires an exuberant trust than he is known to employ in his own concerns, it is accounted dole, though the diligence he hath actually employed be as exact as a man of ordinary prudence would have used. [D. xvi. 3. 32.] These equit- able rules have been adopted by us, and by most other civi- lised states ; and agreeably thereto the borrower in commo- date must be exactly careful of the subject lent, while in his own possession, since he alone has the whole profit arising from the contract. Cases are figured in the Roman law where that contract may be formed for the sole advantage 8 THE LAW OF NEGLIGENCE. of the lender ; in all of which the borrower is liable barely de dolo. [D. xiii. 6. 5, § 10.] But most of the cases there stated do not constitute the proper subject of com- modate, which is always gratuitous on the part of the lender. [Inst. m. 14, § 2.]" Beasons of § 7. It will be easily seen by comparison, that the rules ?hf hmg°uage staled by Erskine are virtually identical with those which of tlie classic I stated at the outset as the rules of th% Roman law. I .luusts. myself prefer to adhere exactly to the language of the classic jurists themselves, which savours of their great prac- tical experience, and which will be found singularly to harmonise with the modern decisions of our own Courts. Indeed our modern decisions even more than the learned discourses of Holt and Sir W. Jones (to be touched on presently) reflect the language and modes of thought of the classic jurists. Notable excep- § 8. To the general rules above laid down there is one rules i/oase'' rotable exception, and it is one curiously illustrative of of mandatum. the exact business habits of the ' ancient Eoman. In the transaction of mandatum (mandate) the benefit may be on the side of either party solely, or it may be common to both. But in mandate the degree of care required from the person undertaking the commission does not depend upon the benefit. The law says : If you undertake to do a thing, you must do it. Neither the circumstance of the service being gratuitous, nor any careless habits in which you are accustomed to indulge in your own affairs, will excuse you for carelessness in business which is another's. [C. IV. 35. 11, 13.] It was your own choice to undertake it, and if you had not done so the mandant might have done it himself, or found some one else to do it. [Inst. iii. 26.11.] The argument which holds in partnership will not apply here. It is always a matter of choice whether one will take a partner or no ; and if he decide on taking a partner, it is in his choice whom to take. But the case is difierent in regard to mandate. A person may have ROMAN AND ENGLISH LAW. O business which must be done, and the choice of commis- sioners may be limited. The case is still stronger with regard to negotiorum gestio. Here A. finding that B.'s NegoUorum concerns in his absence require looking after, without any ^^ "*' mandate from A. undertakes to manage the affair. In this case A. will have a claim against B. for all disbursements. But on the other hand A. is bound, even more stringently than in the ordinary case of mandate, to give exact dili- gence. [D. m. 5. 6, § 12, eod. tit. 11 ; D. l. 17. 23.] It has certainly been said that in certain cases of urgency, where a friend interposes as negotiorum gestor to prevent imminent loss, he will only be liable for dolus. [D. iii. 5. 3, eod. tit. 9.J But on the other hand it has been said that he is even liable for casus, if he should, on behalf of the absent, have commenced some novel and unwonted business. [D. iir. 5. 11, 22.] The amount of care demanded varies, in fact, with the circumstances, and especially with the kind of necessity there was for interposition. [C. ii. 19. 20.] § 9. Before applying these principles to the English law Conception of I must advert to a difference between the Eoman law and Roman and in our own in their conceptions of contract. English laws. The Roman law classified obligations according to whether Roman elaasi- they arise ex contractu or ex delicto ; a division which, from oMigations its manifest imperfection, they were obliged to supplement Ex-amtractu by arrangipg the remaining obligations by some fancied ~*^ *" "' analogy to either. Hence the division adopted by the Institutes of Justinian : — ex contractu — quasi ex contractu — ex mdlejicio — jwas* ex maleficio. The obligations which Those ex-con- arise ex contractu they again subdivide according to the divided. different modes of completing or evidencing the contract, (a) (o) Be, verbis. Uteris, consensu. Be = Mutuum j Commodatum> Depositum ) Consensu = Emptio venditio ) Lcoatio conductio I Societas j Mandatum J Verbis depended for their effect on a legal Bolemiiity, like deeds under seal with ua. Literin, contracts which (like tliosc under St. of Frauds with lis) must be matle or evidenced by writing. rO THE LAW OF NEGLIGENCE. and these subdivisions are again further analysed into the diiiferent species of contracts which compose them. English law. The English law makes no attempt to classify obliga- viewed under tions arising out of contract, but contemplates all contracts a single type, ^s moulded On a single type; namely, a promise grounded consideration. On a consideration. Where obligation is contracted by deed, consideration is presumed. But in other cases, the ques- tion wliether or not a contract is enforceable by law,(a) generally resolves itself into the question whether or not the promise to be enforced is grounded upon a good legal consideration. Coggs V. Ber- § 10. In the celebrated case of Coggis v. Bernard (Sm. L. nard. q_^^ ^^I^ ^.^ ^ j^yy-j ^-^^ decision amounted to this : that the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it. And accordingly it was held a good ground of action, that B. (as the declaration stated) under- took safely and securely to carry and lay down certain casks of brandy, and that bj' B.'s negligence one of the casks was staved ; although it was not alleged that B. was a common carrier, nor averred that he was to have anything for his pains. Coggs V. Ber- Now according to the Eoman law, this would have been caee of man^ simply a case of mandate ; and by that law the person date. undertaking the mandate was liable for culpa. And the only difference between the Eoman law and the English upon the point consists in this : that in ours the conclu- sion is reached by the fiction of a consideration, which in the Eoman law was unnecessary. The case of Coggs v. Bernard was long celebrated in Westminster Hall for the judgment of C.J. Holt, who, under colour of citing Bkacton, introduced a learned discourse on the doctrine of the civil law ; and enumerated six kinds of bailment, and the rules, founded on the civil law, applicable to each. 1 may observe (a) Strictly speaking these remarks apply to the Courts of Law in England as distinguished from Courts of Equity. This language is not held by Courts 'of Equity, and therefore does not apply to oonti'acts (such as partnership) which it is the proper sphere of a Court of Equity (that is to say, the Court of Chancery) to enforce. USE OF "GROSS NEGLIGENCE" RECTIFIED. 11 that hailmerd is a technical term of English law signifying the delivery of a thing by the owner upon a contract in- Bailment. volving some duty in the keeping of it at the hands of the other. The case of Coffgs v. Bernard is also notable as being sir w. Jones' the peg upon which Sir W. Jones hung his able and ^^^^Yiimcnt'' scholarly treatise on the law of hailment. This judgment of Holt, and the treatise of Sir W. Jones, have since been considered the leading authorities in the law of England upon this subject. § 11. While adverting to these authorities 1 must make Confusion this observation, that although both 0. J. Holt and Sir W. EngUsMaw- Jones follow the Roman law in excepting mandate from yers in their the ordinary rule, by which responsibility correlates with Jj^^^^m' gross benefit, the necessity for this exception has not always negligence. been perceived by the English lawyers who followed them. The result has been a curious ambiguity in their use of the term gross negligence. Imagining that, to make the gratuitous commissioner liable, a case of gross negligence must be established, they have applied the terms " gross negligence," " crassa negligentia," "eulfa lata" to mere want of the skill or care promised. For instance, it has been held that a person employed on account of the skill of a particular kind which he professes, is liable, although acting gratuitously, if he fail to adhibit such skill as may reasonably be expected from his profession. In order to harmonize the case with the general rules of bailment, these lawyers thought it necessary to term such failure in skill gross negligence ; and this misuse of the term gross negligence has even been imported into cases of contract for mutual benefit, where there is not the shadow of an excuse for such language. This absurd and misleading use of words has given fair occasion for the remark that gross negligence is only ordinary negligence with a vitu- perative epithet (1 Sm. L. Ca. 196, Grill v. Genl. Iron Screw Collier Co. L. R. 1 C. P. 612). The truth is, that however confused their language, the instinct of English 12 THE LAW OF NEGLIGENCE. lawyers has led them practically to adopt the conclusion arrived at by the Eoman law, so that except in the case of common carriers (who have peculiar liabilities of their own as will presently be seen) there is no distinction in law between the duty implied by mandate and that implied by work done for hire. Or if there be any differ- ence it is merely this, that a jury may if they please, in acquitting from negligence, take into account the gratuitous nature of the service. [See cases commented on in Smith, L. Ca. vol. I. pp. 193-196]. I must while upon this subject further observe, that having through the association of ideas above referred to imported the expression gross negligence into cases of ordinary contract, they then rationalised upon the words gross, &c., explaining them to mean considerable or palpable as opposed to slight or merely constructive negligence. I shall afterwards revert to this subject (§§ 4.6, 54, 58, 60, 87 infra). In the mean time note that, when we come upon the terms gross negligence, &c., in English law, it must be marked whether they are used in the sense of culpa lata as employed by the Eoman lawyers, or merely in the sense of considerable or palpable negligence. § 12. I have another observation to make in preparation for the ensuing analysis of cases upon the subject of negligence. In laying down the above rules the Roman lawyers contemplate only obligations arising out of eon- tract. And in this they are followed both by 0. J. Holt Extension of and Sir W. Jones. But the principle embodied in these to^obUgatons ^ules extends to cases which do not arise out of contract, not arising This the Eoman lawyers recognised as we have seen in ex-contractu. ^^^ ^^^^ ^^ damage under the lex Aquilia. But this extension of the principle is obscured by the sharp line of demarcation which they drew between obligations arising ex contractu, and those which arise ex delicto — a distinction which is still more marked in the language of English lawyers, who are accustomed to consider actions arising out of torts (wrongs) as a class apart altogether from those which arise out of contract. But this distinction is il- OBLIGATIONS EX DELICTO — EX CONTKACTU. 13 logical. To speak correctly, all actions have their legal ground in wrong. For all must arise upon the breach, actual or apprehended, of some duty. And although it may be useful to distinguish injuries or breaches of duty, according to whether the jarimary duty (that is the duty broken) is imposed by contract or not imposed by contract, it is not logical in this sense to oppose delict to contract. For there are many duties which are not imposed by contract, and yet do not arise from delict. Such for instance are all the duties arising from the domestic and personal relations. Such is the duty of restitution where money has been paid in the mistaken belief of its being owed. Such duties are by Lord Stair happily distinguished from those which arise out of contract, and are by him classed under the name of obediential obligations — duties which are laid upon us by the will of God, and not through our own engagement or consent. Another set of duties which have always puzzled those who try to class all obliga- tions as arising either ex contractu or ex delicto, are those arising from possession. The duty of the occupier to keep his premises in safe repair, &c. These are certainly not duties arising ex delicto, although the breach of them is commonly classed in English law amongst torts. Yet why the breach of such duties should be torts or wrongs any more than the breach of a duty imposed by contract it is difficult to see. I shall therefore in the sequel consider the breaches ot duty arising from negligence without sharply dividing the cases where the primary duty arises, and where it does not arise from contract (a). It will I think then be found (o) It may seem a novelty in a practical essay on English law to ignore the distinction between obligations arising out of contract and those arising out of tort. The distinction has no doubt important effects in relation to procedure. [AUon v. The Midland Bailway Company, 19 0. B. (N. S.) 213. Dicey on Parties, p. 10, 20, 283, 371.] With these I am little concerned in the present essay ; the object of which, is to examine the grounds of legal liability. And the ground of liability has to do with the technical dis- tinction between tort and contract much less than is commonly imagined. The chief practical effect of the distinction is to produce a certain class of cases where there is said to be damnum absque injuria, cases of which 14 THE LAW OF NEGLIGENCE. 1. Sliglat neg- ligence suffi- cient to infer liability, (o) Commoda- turn or loan. convenient to invert the order in which degrees of negli- gence have hitherto been treated, and to consider, 1st, cases where slight negligence is sufficient to infer liability ; 2ndly, where ordinary negligence is sufficient; 3rdly, where the culpa lata which the Eoman lawyers held equivalent to dolus is necessary to infer liability. I. JExacta diligentia — Gul^pa levissima. § 13. First, then, I shall consider the circumstances under which slight negligence is sufficient to infer liability (a), (a) The typical species of this genus is commodaium, or Winterbottom v. Wright [10 M. & W. 109] is the type. Winterbottom v. Wright waa as follows : — X. contracted with the Postmaster-General to pro- vide a mail coach. M. contracted to horse the coach, and hired A. to drive it. A. was damaged while driving the coach, through its breaking down from latent defects in its construction. A. sued X. and failed, because there was no duty upon X. to A. to have the coach in a safe condition. That is to say, X. did not warrant the coach to A. as reasonably fit for the purpose. To say, however, that X. had no duty to A. seems to me a mis- use of language. For suppose A. had observed and complained of a defect in the coach to X., and X. had declined or neglected to have it remedied, and A. had been damaged in consequence, 1 should think there would have been ground for an action on the case for negligence. The want, therefore, of privity of contract does not necessarily imply that there is no duty between the parties, but merely negatives any warranty, express or im- plied, which the terms of the contract may import between those who are privy to it. The liability for actual negligence, in the ordinary sense of the word, causing damage to another, cannot, I should think, be taken away by the mere fact of the existence of a contract between one of the parties and some third person. I feel, however, that I am here dangerously wandering beyond the bounds of actual decision. (a) I may here observe that where culpa levissima is in question, the presumed culpa which is the ground of liability is not always distinguish- able from an implied contract of warranty. Both are fictions. The first is the favourite of the Eoman, and the last, of English law. Apart from certain points of procedure which are now less important than formerly, it is really of little moment which fiction is adopted. Assuming contract as the ground of a liability to indemnify, we might range the species of liability in the following order : — 1. Absolute — in the nature of insurance. This can only be by express contract. [Ford v. Cotesworth, L. E. 5 Q. B. 544, cf. D. xix. 2. 9, § 2.] 2. In the nature of warranty— (a) Against everything except the Act of i God ; e. g. common carriers. I Culpa levissima (b) That reasonable care shall be taken, l or &c. ; e. g. carriers of passengers by j Exacta diligentia. rapid conveyance. | 3. Indemnity against negligence (ordinary). Culpa. 4. Indemnity for consequences of wilful wrong,! or such gross negligence as the law pre-> Dolus vel culpa lata. sumes equivalent thereto. ) EXACTA DILIGENTIA — CULPA LEVISSIMA. 15 gratuitous loan. This transactiou being for the sole benefit of the borrower, he is liable for very slight negligence — everything (as the Eoman lawyers expressed it) short of casus. But the reason of this rule applies to a much wider and more important class of cases. It embraces that responsi- bility to strangers under which every one lies while law- fully using his own property or pursuing his own private advantage or pleasure. This is the meaning of the maxim " Sic utere tuo ut alienum non laedas." The principle of this responsibility was applied by the Roman lawyers very widely in their expositions of the lex Aquilia de damno ; and the same principle is within somewhat narrower limits asserted in the English law. I do not say that in all these cases the care or diligence required must necessarily be described by superlatives. But I think it may gene- rally be affirmed that in such cases the amount of care required is greater and the degree of negligence deemed inexcusable is less than in ordinary cases of contract. § 14. (i3) It is for instance the duty of every one in the (/s) Occupier possession or occupation of lands or buildings to have his ^-g bound^to premises in such condition and to conduct operations thereon keep them in in such manner as fs consistent with safety to all persons ^^ ^ r^P'''"- being where they have right to be (a). This is an absolute duty, that is to say, a duty to the public at large ; and if a case of palpable danger were made out, the occupier of the premises or author of the operations would doubtless be liable to an Indictment [i?e^. v. Stevens, L. E. 1 Q. B. 702], just as in any other case of nuisance or detriment to the public (6). And it would be no answer to such an (o) The person in actual possession as occupier Is always liable. [JIadley v. Taylor, L. R. 1 C. P. 53.] The landlord l]a?ing only the pos- sessio civUis is also liable if tbe damage arises from hid non-feasance or mis- feasance. In buch a case, the party suffering the damage from the wrong has the option of sneing either the landb^rd or tenant. [Todd v. Flight, 9 C. B. (N. S.) 377 ; 30 L. J. 21 (0. P.) ; Dicey on Parties, p. 377.] (6) It U not, however, the rule in England that an action lies wherever au indictment wonld lie. Action does not lie for the breach of an absolute duty where the damage suffered by the individual is merely of the same kind, even if greater in degree than tho inconvenience suffered by the public 16 EXACT DILIGENCE. Indictment to say that the dangerous state of the premises was caused by acts of his servants or workmen contrary to his general orders. Danger to the public is, however, then commonly first perceived when some one is damaged, and therefore the question of negligence generally comes into a court of law in an action for the injury. As an instance, I will take the following case from the Law Reports : — § 15. In an action for negligence brought against a Rail- way Company for not keeping in proper repair the bridge over a highway crossed by their line, in consequence of which a brick fell and damaged the plaintiff: The state of facts was this : — The bridge was an iron-girder bridge resting on one side on iron piers, and on the other on a perpendicular brick wall with pilasters. The brick fell from tlie top of one of the pilasters, where one of the girders rested on the pilaster. A train had passed just previously. On this evidence the jury found a verdict for the plaintiff. It was held that the verdict was justified by the evidence. It was the duty of the defendants to use all reasonable diligence and care in keeping the bridge in proper repair. The unusual occurrence of a brick falling was prima facie evidence of the want of due diligence ; and it lay on the defendants to rebut this, by showing that the bridge had been examined by proper persons from time to time. [Keartiey v. L. B. & 8. C. By., June 15, 1870. L. E. 5 Q. B. 411.] "Reasonable" is, of course, a word of shift- ing import, but it is impossible to resist the inference that what the judges here desiderate is what the Roman lawyers would have called exacta diligentia. genemlly. [Winterhotlom v. Lord Derby, L. R. 2 Ex. 316.] It is now definitely settled that an action does not lie against a local Board under the Public Health Acts for damage to an individual occasioned by disrepair of a parish load vested in them, and placed by the Act under their manage- ment, [Gibson v. Mayor of Preston L. E. 5 Q. B. 218.] This appears to be a consequence of the old form of remedy which only lay by Indictment against the inhabitants of the parish. It was held that the Act, by trans- ferring the duty of management, did not give individuals a new form of remedy. OCCUPIER OF DANGEROUS TENEMENT. 17 § 16. The case of Scott v. Liverpool Bock Company [3 H. & C. 596, & 34 L. J. Ex. 17, 22] was a case in which a custom-house officer upon his lawful business was injured by the fall of sugar-bags from a lift over a door on the defendant's premises. No explanation was given of the cause of the occurrence. The fact was, how- ever, held evidence of negligence. It will be observed that the statutes for the protection of the revenue give to custom-house officers the right of entry to premises where occupations of certain kinds are carried on. The occupiers of the premises therefore hold them subject to the right of entry of the revenue officers, just as any one having a house under which is a public passage, holds the pre- mises subject to the right of the public to pass. Con- sequently this was a case very like that of the last, namely, that of a person passing along a public road under the railway bridge : and it seems that in both cases liability would be inferred from something less than ordinary negligence. For had the question been whether there was negligence of the order commonly called ordinary negligence I think that some positive evidence as to the cause of the occurrence would have been re- quired. The inference seems to be that, in a question with strangers being where they have right, every person is bound in exact diligence for the safe repair of his premises and conduct of his operations. Failing such safe repair of premises or conduct of operations, prima facie evidence of negligence may be furnished, in case of resulting damage, by the maxim res ipsa loquitur. [See also Byrne v. Boodle, Nov. 25, 1863, 2 H. & C. 722 ; Briggs v. Oliver, May 1, 1866, 35 L. J. 163. But com- pare Eiggs v. Maynard, 14 W. E. 610, Harrison and Eutherfurd, p. 581 ; Welfare v. L. ^ B. By., June 3, 1869, L. E. 4 Q, B. 693 ; Barnes v. Ward, 9 C. B. 392 (excava- tion near a public way).] § 17. (7) Where a person or corporation is by statute (7) Persons entrusted with the making and maintenance of works, and ^^ "^^ ® ^' ^ c 18 EXACT DILIGENCE. the mainte- entitled to demand tolls for the use of those works, there nance of works jg ^jjgjj ^ duty upon that person or corporation to the public paying public (or at least to all persons lawfully using the works, *°"^- Shoeboiiom t. Egerton, 18 L. T. (N.S.) 889) to take care that the works are constructed and maintained with reasonable efficiency for the public purpose for which they are au- thorized to be made. And if a person lawfully using the works is damaged through want of care in their construc- tion or maintenance I think that something less than ordinary negligence suffices to make the damage an injury ; or, which is saying the same thing, I think that more than ordinary care in the performance of the statutory duty is demanded from those owing it (a). This (a) Selden, J., in an American case (West v. Srochport, 16 N. Y. 161, note), says, " Whenever an individual or a corporation for a consideration received from the Sovereign power has become bound by covenant or agreement, express or implied, to do certain things, such individual or cor- poration is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect." Shearman, § 126 n. I am not aware that any such general doctrine has been laid down in Kn gland. Cut there are oases which seem to indicate that it is applicable. In Bessant v. Great Western Railway Company, 8 0. B. (N. S.) 368, sheep were damaged by straying througli a fence which the Eailway Company were, by their Act, bound to maintain as an accommodation work to a neighbouring proprietor. It seems that in such a case the Company warrant to the occupier the suffi- ciency of the fence for all purposes required for good husbandry. In Coe V. Wise [L. E. 1 Q. B. 711], damage was caused to the plaindif's land by the bursting of a sluice through the negligence of the resident engineer and sluice-keeper in the service of the Commissioners; a body constituted by statute with the duty of making and maintaining the sluice. The Com- missioners were held liable. These all seem to be cases where the question Is not merely that of ordinary negligence. In considering the effects of these statutory duties we must, however, consider whetlier the enactment is conceived in the interest of the public at large, or is merely in the nature of a covenant with the adjoining owners or occupiers. A statutory enact- ment of the latter class will not ground a remedy in favour of a stranger. [Manchester, &c., Mailway Company v. Wallis, 14 C. B. 213 (case of cattle straying on a highway adjoining the railroad). ] As to how the obligation to maintain fences, &e., may be constituted by award in pursuance of statute, see Lockhart v. Irish North- Western Mailway Company. [14 Irish C. L. 885.] A class of cases of nuisance not necessarily arising from negligence, but in some respects cognate with the subjects considered in the text, are those involving the right of support which one proprietor has from the ground of his neighbour. The principle in England is that the proprietor has the right of support to his ground in its ordinary state, but not to buildings on it unless erected for twenty years. If the operations would have caused a subsidence of the ground without a building erected on it, but the damage would then have been inappreciable, tliere will be no right of action, although a building less than twenty years old has been considerably damaged. [^Smtth v. Tliackerah, L. E. 1 C. P. 564.] TRUSTEES OF PUBLIC UNDERTAKINGS. If) may be illustrated by the case of the Mersey Bocks and Harbour Trustees v. Qihhs and others, decided in 1865 in the House of Lords on appeal from the Court of Ex- chequer Chamber. [Eeported L. E. 1 H. of L. 93.] The action was for damage to a ship and cargo caused by the ship grounding upon a bank of mud at the mouth of the dock. At the trial the Chief Baron Pollock directed the jury that, " if the cause of injury was a bank of mud in the dock, and if the defendants by their servants had the means of knowing the state of the dock, and were negligently ignorant of it, they were liable." A bill of exceptions was tendered to this ruling, and the jury having found for the plaintiffs, the question whether the Chief Baron's ruling was right in point of law came before the Exchequer Chamber, and afterwards on appeal to the House of Lords. [7 H, and N. 329 ; L. R. 1 H. of L. 93.] § 18. It was argued for the defendants that, to establish a case of liability against them, it was not enough that they were proved to have the means of knowledge of the obstruction unless they were also proved to have actual knowledge of the existence and of the dangerous nature of the bank. But this contention did not avail. And it was held to be clear on the authority of the cases cited in the argument (especially that of Parnaby v. Lancaster Canal Company, 11 Ad. & E, 223) that a body incor- porated by statute, with the right to levy tolls for the profit of its members, in consideration of making and maintaining a dock or a canal, is liable in its corporate capacity to make good to the persons using it any damage occasioned by neglect in not keeping the works in proper repair. But -the defendants further claimed exemption from liability on the ground that they were not authorized to receive tolls for their own profit, since by the constitution of the coi-poration the profits of their undertaking were dedicated to the benefit of the public and of the shipping interest using the docks. It was, however, decided by the unanimous opinion of the learned lords present, following c 2 20 EXACT DILIGENCE. the joint opinion of the consulted judges (delivered by Blackburn, J.), that the circumstance of the profits being thus ultimately applied to public purposes made no differ- ence. The result seems to be that every person or cor- poration privileged to make and maintain public works, and to levy tolls for the use of them, is bound to use exact diligence in making and maintaining those works so as to be in a reasonable state of efficiency; and that the negligence of servants, contractors, and employes of every description causing failure in the performance of these duties may be imputed to the person or corporation itself. [Mersey DoeJis Trustees, &e. v. Gihls, L. E. 1 H. of L. 93 ; cf. Ooe v. Wise, L. E. 1 Q. B. 711. As to EaUway Companies, see Grote v. Chester ^ Holyhead By. Co., 2. Ex. 251. ; and Virginia, &c. By. Co. v. Sanger, 15 Grratt 230, cited by Shearman, § 444 w.] (a) § 19. It seems, then, that the position of a person or corporation privileged to make and maintain public works and to levy tolls for them, and who has omitted the per- formance of his duty to make or maintain the works in a reasonable state of efficiency, is very similar to the position of an occupier having his tenement in a dangerous state. He is unquestionably liable to an Indictment for non- performance of the duty, (b) and he is also liable, as for injury, to the individual affected, in case the threatened danger or mischief result in actual damage. (S) Liabilitiea § 20. (S) On a similar principle is based the liability of of cerlain public officers, (a) It will be observed that this case of the Mersey Docks trustees, derogates in some measure from the effect of former authorities, viz., Duncan v. Findlater, 6 Ci. & Fin. 894 ; & SoUiday v. St. Leonard's Shoreditch, 11 C. B. (N.S.) 192. Those, however, are still authorities to show the distinction between failure to perform the statutory duty, iu the making and maintenance of works for which tolls are taken (in which case the corporation owing the duty guarantees diligence in the performance of it) : and damage occurring through incidental acts of negligence, iu which case the question arises whether the corporation and the negligent person were in the relation of master and servant. The liability of the kind above discussed commences as soon as the dock or work is opened to the public. IThmson v. U. E. By. Co., 31 L. J. Q. B. 194.] (6) See admission in the argument in the Mersey Docks, &o., case, L. R. 1 H. of. L. p. 97. PUBLIC OPFICEES — SHEEIPF, NOTABY. 21 certain public officers entrusted by the State with duties for which fees are exigible, and on the exact performance of which the security of private right depends. The most familiar instance in this country is the lia- Sheriff for' biUty of the sheriff for failure in the due execution and ^^"^^.pe, &o. return of process, and for an escape. In the latter case it has been said that nothing but the Act of God or the Queen's enemies will excuse ; that is to say, he warrants the exact performance of the duty. [Atkinson on the office of a sheriff, sec. x. ; Allen v. Carter, L. E. 5 0. P. 414 ; cf. Lloyd v. Harrison, L. E. 1 Q. B. 502.] This high degree of responsibility only applies between the* sheriff and the person who employs him. For instance, his liability to the owners of goods seized under an execu- tion is only that of an ordinary bailee entrusted with goods for sale. In Scotland the duty of executing all the Queen's writs (inclusive of the summons which in England may be served by anybody) belongs to messengers-at-arms. The liability of these officers in Scotland is substantially on a par with the liability of the sheriff in England. In the inferior courts in Scotland the execution of writs belongs to sheriff-officers, who are not mere servants of the sheriff but are themselves responsible public officers (a). The rationale of the liability of these officers is well considered in the case of Brock v. Kemp [Feb. 20, 1844, Court of Session, 6 D. 709], where it is in effect held that the officer warrants the due execution of the writ. § 21. In most European countries, except England, the Notary office of a Notary is considered a public function. There P"^i'°' seems, however, no duty except the protest of bills of exchange in which his privileges are recognised in English Courts of Justice. He has, doubtless, even in (o) The Office of the Sheriff, although originally identical in England and Scotland, is now very different. In Scotland his judicial functions have been developed, so as almost to overshadow the important ministerial functions which he still exercises. In England the importance of the office has altogether declined, and his most important function is now the execu- tion of writs and precepts of the Courts of law. 22 EXACT DILIGENCE. England useful functions in connection with mercantile law [Bex T. Scriveners' Company, Chitty on Bills, 334]. But their object relates to the rules of evidence in foreign, not in English Courts. He is therefore in England to be viewed rather as a private person employed on account of professional skill than as a public officer (a). In Scot- land he is considered a public officer, and has there most important functions connected with the evidencing of heritable rights. Keepers of § 22. In Scotland the. security of title to land in ques- t ""'"f t^l^'^' tions between purchasers for value depends on the accu- racy of the Eecords, which are under the charge of certain public officers, whose duties are defined by statute, and who are by the statute declared to be liable to the parties prejudiced by the not due observing of the Act. The responsibility of these officers is illustrated by the case of Davidson v. McKenzie [Court of Session, Dec. 20, 1856, 19 D. 226]. The principle seems to be that the keepers of the Kegisters guarantee that the entries in their re- spective departments are made with exact accuracy. Ministers of § 23. The liability of public officers of the class above Government considered does not extend to those who are mere minis- sponsible for ters or servants of the Grovernment so as to make them inferior ser- J ja,ble for the nesrligeuce of inferior servants. Thus it has vants in their , ° * . .^^ ,. . it. departments, been held that an action will not he against the Jrost- master-General for negligence of the inferior officials and (a) The difference in principle between the case of a public ofiBeer and a sMlled person employed for hire tinder private contract is this, that in the former case people are compelled by law to resort to the services of the public officer. Where, however, the number of persons exercising a pro- fession is limited by privilege, the same considerations would seem to apply. Indeed, the line between public officers and persons privileged to perform certain professional functions is necessarily an arbitrary one. Why, for in- stance, should a messengeu-at-arms be more a public officer thaa a writer to the signet? But by the language current amongst Scotch lawyers, he certainly is so. The irresponsibility of a judge depends on certain con- siderations of public utility. That of a barrister correlates with the cir- cumstance that his fee is an honorarium, and is not exigible by law. ISwinfen v. Lord Chelmsford, 1 Fost. & Fin. 619 ; Affd. 5 Hurlst. & N. 390.] HABBOURINO THINGS IN THEIB NATURE DANGEROUS. 23 servants in the Post-office [Lane v. Coiion, 1 Ld. Eaym. 646] ; and, doubtless, the same principle applies to every Government Department in this country. § 24. (e) Another class of cases where a duty is owed (f) Bringing higher than the dihgence correlating to ordinary negli- ^ing"of^a^" gence is the following : — " The person who for his own dangerous purposes brings on his land, and collects and keeps there °* ^^^' anything likely to do mischief if it escapes, must keep it in at his peril, and, it' he does not do so, is jprima facie answerable for all the damage which is the natural conse- quence of its escape, and can only excuse himself by. showing that the escape was owing to the default of the person damaged, or perhaps that the escape was the consequence of vis major, or the act of God." This prin- ciple was laid down in the judgment of the Exchequer Chamber, and approved by the House of Lords in the case of Fletcher v. Bylands (L. E. 1 Exch. 279, and L. E. 3 H. of L. 339). The facts were as follows :— The plain- tiff was the lessee of mines under certain ground, on which the defendant had with the owner's permission constructed a reservoir. The reservoir had been made by a con- tractor, and under the supervision of an engineer, both of whom were competent persons. Soon after the com- pletion of the reservoir, and upon its being filled with water, the water burst into the shaft of an old mine, and- by means of underground communications between this old mine and the plaintiff's workings, these workings became flooded and damaged. There was no personal negligence on the part of the defendants ; but reasonable care had not been exercised on the part of the persons employed in making the reservoir so as to provide for its sufficiency to bear the pressure of the water. The shaft — ultimately the cause of the mischief — had been observed in making the reservoir, but at that time it was not known that it had any communication with the plaintiff's mine. It was held in the Exchequer Chamber, reversing the decision of the Court of Exchequer, that the plaintiff was 24 EXACT DILIGENCE. responsible, and the judgment of the Exchequer Chamber was upheld in the House of Lords. § 25. On the same principle the Festiniog Railway Company were held liable to one Jones, whose haystack was burnt down — ignited by spaiks from a locomotive engine used by the Company, who had no express statutory power to use such an engine. It was proved by the defendants that all reasonable precautions had been taken to prevent the emission of sparks. They were, nevertheless, held liable on the ground that the locomotive was a dangerous machine to be brought and used by the defendants upon their premises at their peril of the consequences in case of damage to others. [Jones v. Festiniog By. Co., L. E. 3 Q. B. 733.] The case would have been different if the Company had been authorized by statute to use the locomotive ; and in that case they would have been merely bound to take all reasonable precautions, and, having done so, the statu- tory authority would have been their warrant, and any loss caused by the use of the locomotive would have been damnum absque injwria. [Vaughan v. Taff Vale By. Co, 5 H. & N. 685 J Hammersmith By. Co. v. Brand, L. E. 4 H. of L. 171 ; CraehneU v. Mayor- and Corporation of Thetford, L. E. 4 C. P. 629.] These cases are likened to the well-known principle by which, if a person keeps a "dangerous animal, he does so at his peril of answering for the consequences if another is hurt. § 26. The last-mentioned class of cases are instances of the extreme degree of responsibility. But in all the cases I have hitherto commented on it is clear that something less than mere negligence, in the ordinary sense, will render the party liable; and, on the other hand, there is a duty towards the stranger of something more than ordinary care. This the Eoman lawyers would have expressed by saying "prmstat exactam diligentiam ;" or, in the language of the modern civilians, he is liable for cidpa levissima — everything but casus. We express this by DANGEROUS ANIMAL. " 25 saying that the circumstance implies a duty to restrain the thing ; the fact of its breaking out raises a presumption of neglect of duty ; and nothing will override that presumption except proof of contributory negligence on the part of the defendant, or proof of some of those occurrences which are termed by English lawyers the " Act of Grod." Whether even such inevitable catastrophe will exonerate in a case where aggravation of its injurious consequences was the natural result of the operations carried on by the.defendant may well be questioned. I am inclined to think that in such a case he would not be exonerated. § 27. The liability incurred by a person keeping or Dacgcroaa harbouring a dangerous animal (a) is undoubted, and no ^^^^'^^' question can well arise in the case of those animals which we are not accustomed to consider tame. But the do- mestic dog has occasioned many legal disputes ; and the presumption by the common law of England is that he is tame, and therefore the owner is not held responsible, unless the dog in question is by disposition ferocious, and 'reasonable ground be shown for presuming that this ferocious character is known to the owner. This is tech- nically called proof of the "scienter," from the terms anciently used in pleading. But this presumption was carried to an absurd extent, when the wolfish nature of the creature was deemed so completely extinguished that it was against his nature to worry sheep and cattle. And it did astonish the Scotch sheep-farmers when this doctrine was brought to their notice by the decision of a Scotch Appeal by Lords Brougham and Cranworth (Fleming! v. Orr, 2 Macq. 14), who applied the rule to Scotland, so that, as Lord Cockburn observed, " every dog became entitled to at least one worry." The consequence • was that an Act (a) The liability for trespass of tame animals is similar in principle. Liability is unqualified for such damage caused by the trespass, as may reasonably be expected from the nature of the animal (e. g. the eatage of • oxen or sheep), but not further extended without negligence (ordinary), or scimter. [Godke v. Waring, 2 Hurlst. & C. 332 (scabby sheep) ; Bead V. Edwardes, 17 C. B, (N.S.) 260 (dogs — damage to game).] The American rule as to damage from trespassing animals seems much more severe — Shearman, § 186. 2(j EXACT DILIGENCE — EXCEPTIONS. (26 & 27 Vict. c. 100) was soon afterwards passed (for Scotland), declaring it unnecessary in an action against the owner of the dog to prove a previous propensity to injure sheep or cattle (a). An Act to a similar purport was afterwards passed for England (28 & 29 Vict. c. 60) (h). Exception, s 28. In referring to the Festiniog Eailwav case (the where dan^^er o ^ ./ \ caused by acts case of damage by sparks from a locomotive), I observed done under ex- i]xa,t the question would have assumed a different aspect if press power .i^ ,, , iii j- -i given by sta- the Company had employed the locomotive engine under *^^ J°^P'i'''i<= express statutory authority {Bex v. Pease, 4 B. & Ad. 30 ; Vauffhan Y. Taff By. Co., 5 B..&'N. 679). The express sta- tutory power reduces the legal character of the act from that of a use of property made by the owner at his peril, although not prohibited by law, to a legitimate use for public purposes, and with public sanction and allowance (c). Level cross- § 29, Of this order is the use of a railway which by wlys°° ™^ " statutory authority crosses a road at a level. If the road be a turnpike, statute labour, or other public carriage road, the Public General Acts relating to railways pro- vide that gates shall be used at such level crossings,' under the charge of proper persons to open and shut them. [2 & 3 Vict., c. 45, § 1 ; 5 & 6 Vict., c. 55, § 9 ; 8 & 9 Vict., c. 20, § 47], and the last statute enacts that, unless the Board of Trade by special order direct other- wise, the gates are to be kept constantly closed on both sides of the railway, except when horses, carriages, &c., (a) As a late case of the application of this act, see M'Iniyre v. Car- michael. Court of Session, Feb, 18, 1870, 8 M'Ph. 570. (6) It has been decided by the Queen's Bench that horses are, under the word cattle, within the protection of the Act {Wright v. Pearson, June 25, 1869). A person seems not guilty of harbouring a strange ferocious dog if he use reasonable efforts to drive it off his premises [Smith v. Great Eastern Bailway Co., L. K. 2 C. P. 4.] Attempts to bite, if brought to the knowledge of the owner, are evidence of the dog's dangerous character. IWorth V. GiUing, L. K. 2 C. P. 1.] A dog having four years ago bitten a boy, and defendant's wife having notice, has been held evidence to go to a jury of dog's dangerous character and defendant's scienter. Gladman v. Johnson. 15 W. B. 313 0. P. (c) Where a person under a statutory enactment is empowered to break up a road for a temporary purpose, it lies upon him to reinstate it. Glover V. East London Water-warlcs Co., 0. P. 16 W. R. 310 ; but not to answer for the consequence of the subsequent natural subsidence of the soil. Hyams V. Webster, L. E. 4 Q. B. 138 (Ex. Oh.) STATUTORY AUTHOEITY — LEVEL CEOSSINQS. 27 have to cross. In sucli a crossing it has been held by the Court of Exchequer that the leaving open one of the gates was an intimation on the part of the company that the line was safe, and a jury were held justified in finding a verdict for the plaintiff (a foot passenger who had been knocked down by the Brighton express), on the ground of negligence on the part of the company. [^Stapley v. L. B. ^ 8. G. By., L. R. 1 Exch. 21.J And a railway company has been held liable in a case where a private road came out on one side, through a gate which also served for a level crossing by a public carriage-way, and where the gate-keeper, being asked whether the line was safe, said "Yes, come on." That was held an intimation by the company that the line was safe. (Lunt v. London & N. W. By. Co., L. E. 1 Q. B. 277.) But there is no duty imposed on the company by any general Act to place a watchman at a level crossing over a public footway, nor at a level crossing over a private carriage-way. And where no duty is expressly imposed by the legislature there is none by the common law, and the question will be simply this: whether, haying regard to the circumstances, the company has been, through their directors or servants, guilty of negligence. The omission to place a watchman is not evidence of negligence if the view of the liae at the spot is clear. [Stubley v. L. & N. W. By. Co., L. E. 1 Ex. 13 ; Wdker v. Midland By. Co., 14 L. T. (N. S.) 796.J § 30. It has been said by a great authority that the mere failure to perform a self-imposed precaution will not con- stitute actionable negligence (per Willes, J., in Shelton v. L. & N. W. By., L. E. 2 C. P. 636). And it is no evidence of actionable negligence to show that the company having formerly been used to employ a gatekeeper, had for years before the accident in question discontinued such practice ; nor that, having obtained powers to divert the road so as to cross the railway by means of a bridge, they had not carried those powers into execution. {Cliff v. Midland By, Co., L. E. 5 Q. B. 258.) . 28 EXACT DILIGENCE. § 31. Here I must allude to a case whose authority has been much canvassed, the case of Bilbee v. L. & BrigMon By. [18 C. B. (N.S.) 584.] The railway crossed on a level a public carriage and footway at a spot which was particu- larly dangerous owing to a curve in the line and a bridge obstructing the view, so that trains coming in one direction were not seen until very close. There were gates across the carriage-way which w ere kept locked ; but the footway was protected merely by a swing-gate on either side, no person being there to caution people passing. The plaintiff while using the footway was knocked down by a passing train and damaged. The judge at the trial left it to the jury to say whether or not the company had been guilty of negligence. The jury gave their verdict in favour of the plaintiff, and it was held by the Court that this verdict was warranted by the evidence. It is difficult to harmonise Bilbee's case with the other authorities, but it is possible, to do so if we suppose the ground of the de- cision to have been that the company, having chosen to obstruct the view from the crossing by making a bridge close by, are bound to use some extra precaution for the safety of the public (see observations in Cliff's case, L. K. 5 Q. B. pp. 263, 264). In agreement with this view it has been held that, on approaching a level crossing at a smoky place on a dark night it would have been a reasonable pre- caution to whistle, and that the engine-driver's omission to do so was evidence of negligence against the company. \James v. Q. W. By. Co., L.E. 2 C. P. 634, note ; cf. Philadel- phia By. Co. v. Eagan, 47 Penn St. 244 ; Shearman, § 481 ; Grant v. Caled. By. Co., Court of Session, Dec. 10, 1870.] (0 Eesponsi- § 32. (f) The same responsibility in regard to the safety pier to°per-°"' °^ ^^ premises which a person owes to the public being in sons coming places where they have lawful right, he owes to those who, ^vitation! ^ ^1 ^^^ invitation, come upon his own premises in pursuit of a matter of common interest to both. I here exclude the case where the relation between the parties is one of contract, and the damage arises from a risk which the INVITATION TO COME UPON PEEMISES. 29 sufferer may be presumed to have contemplated as a risk incident to the contract (a). Being on the premises by invitation of the occupier is distinguished from being there by his mere licence, in which case the occupier is liable, like any other person whom the licencee may meet upon his premises, for ordinary negligence only. And such negligence would be inferred if there were anything in the nature of a traj^ upon the premises known to the owner, and of which he failed to warn the person who obtained his permission to go there. [Souihcote v. Stanley, 1 H. & N. 247.] It is not, perhaps, easy in all cases to distinguish the circumstances which imply an invitation from those which imply a mere licence ; and the only guide on this point will be a close study of the decided eases. Of those in which invitation has been inferred, I shall instance Nicholson v. Lancashire ^ Yorkshire By, Co. (34 L. J. Ex. 84); Indermaur v. Dames (L. R. 1 C. P. 274, & 2 C. P. 311) ; Smith v. London ^ St. Eatherine Docks Co. (L. E. 3 C. P. 326) ; Holmes v, N. K By. Co., L. E. 4 Ex. 254; GhapmMn v. BoihweU, El. Bl. & El. 168, (b) and of those where a mere licence has been inferred — Bolch V. Smith q^M.. & N. 736, 31 L. J. Ex. 201); Sullivan v. Waters, Irish 0. L. R. 460 ; Gautret v. Egerton (L. E. 2 C. P. 37lf § 33. The principle appears to be that invitation is (a) E. g. Seymour v. Maddox, 16 Q. B. 326. (Supernumerary employed at theatre, where there was an unfenced hole in the floor between the dress- ing-room and stage, alleged to have been insufficiently lighted.) A similar case is that of Brookes v. Courtenay, Q. B. 20 L. T. (N.S.) 440. (6) This was a case on demurrer. Declaration stated that deceased fell through a trap-door negligently left open, &o., in a passage. In the case of Paddock v. N. E. By. Co. [18 L. T. (N.S.) 60], a person coming on business to a railway goods depot, and following in the dark as nearly as possible the directions of a servant of the company, fell into a coal receiver, a deep place occupying the width between the rails, where coal-waggons were standing. The Exchequer Chamber held that there was a case for « jury. But in a very similar case to the last, where the plaintiff in the dark fell down an ordi- nary staircase, he was nonsuited. [Wilkinson v. Fairrie, 1 Hurlst. & 0. 633.] In the case of Axfcn-d v. Prior, 0. P. 14 W. E. 611, a person coming to see a friend at a public-house fell through a hole in the parlour which was being repaired. There seems to have been contradictory evidence whether he was warned or not. He was held, after verdict, entitled to damages. In tlie above cases, except Fairrie's case, there seem to be present both the elements of invitation and of something like a trap. 30 EXACT DILIGENCE. inferred where there is a common interest or mutual advantage, while a licence is inferred whefe the object is the mere pleasure or benefit of the person using it. A case where the common interest is not at first obvious, but yet was held sufficient to infer invitation, was that of Smith V. London & St. Katherine Dock Co. (L. E. 3 0. P. 326) where the damage occurred by reason of a gangway, provided by the company for access to a ship lying in the dock being left in an insecure condition. The sufferer had come on board at the invitation of one of the ship's officers. The ground of decision was that the providing of access to the ships for the crews and all who had business on board was within the undertaking of the company, for which they received consideration in the dues authorized to be taken from the shipowners. Invi- tation, therefore, in the technical sense of the word as employed in this class of cases, differs from invitation in the ordinary sense — implying the relation between host and guest. In the case of host and guest, it would be thought hard that the hospitality of the former should expose him to the responsibilities implied by business relations. The guest must take the premises as he finds them, with any risk owing to their disrepair ; although the host is bound to warn his guest of any concealed danger upon the premises known to himself (Southcote v. Stanley, 1 H. and N. 247). strict. (rj) Eesponsi- § 34. (tj) I shall now consider the case of common carriers, Sarrfer" ^0™ ^^^o^' ^7 ^^^ ^^w of England, a peculiar kind of exceptionally responsibility is exacted. And the responsibility of common carriers falls to be considered here, because their responsibility is greater than that of those from whom merely ordinary care is demanded. But their case is exceptional. For the contract being to carry for hire, the benefit of both parties is contemplated. A common carrier is one who undertakes to carry for hire, from one certain place to another, such goods as shall be delivered to him for carriage by any person. The carrier is answer- able by the custom, as it is said, of the realm, for every COMMON CAKEIEES. 31 loss or injury to the goods so delivered, unless occasioned by the act of God, or the Queen's enemies ; and he is, more- over, bound to receive and convey any goods of every appli- cant who is ready to pay the price of carriage provided there be room for them. [Smith L. Oa. vol. i. p. 206 ; Stephen's Comm. vol. ii. p. 86.] When a person has re- ceived goods in the capacity of a common carrier, he is ■ not discharged from liability in that capacity until he has either delivered the goods to the consignee or his as- signees, or until a reasonable time has elapsed after the consignee has notice of the arrival of the goods, for him to come and receive them. [Bourne v. GatUff, Ex. Ch. Dec. 9, 1841 ; 3 Scott N. E. 1 ; 3 M & G. 643 ; H. of L. June 7, 10, 1844 ; 8 Scott N. E. 604; 11 01. & Fin. 45.] In the case of carriage of goods by sea, the time and mode in which the shipowner may land the goods so as to discharge himself from liability is now, in the absence of express stipulation, defined by statute. [25 & 26 Vict. c. 63, § 67 ; see Wilson v. London, Italian, ^c. Co., L. E. 1 C. P. 61.] § 35. It must be observed that where a common carrier between two places, e.ff. Liverpool and London, under- takes at the last place to deliver them at some particular address, there are two parts of the contract which must be distinguished. The first part is undertaken in the capacity of a common carrier. But I think the last part cannot be undertaken in that capacity; for a person cannot be a common carrier between King's Cross (for instance) and the various addresses in London to which parcels may be consigned. But this makes little, if any, practical dif- ference. For since the bailee cannot discharge his liability as common carrier except by averring and proving loss by the act of God or the Queen's enemies, or default on the part of the owner to take delivery within a reasonable time after notice that the goods have arrived at the ter- minus, he cannot by way of defence avail himself of any distinction between the special undertaking and the under- 32 EXACT DILIGENCE. taking of a common carrier. If the bailment in its com- mencement is that of a common carrier, as that of a railway company generally is [Fickford v. Grand Jwiction By. Co., 10 M. & W. 399 ; Farher v. G. W. By. Co., 7 Scott, N. E. 835], the practical consequence of the goods being specially addressed appears to be merely this : that if ten- deied for delivery at a reasonable hour at the address given, his liability as a common carrier will cease, and he is thenceforth only bound to use reasonable care. In case of refusal by the consignee to receive the goods at the stated address, the usual course of business is to give notice to the consignor that the goods have been rejected, and to wait his instructions. The goods will now be held to the order of the consignor [Metzenburg v. HigMand By. Co., 7 McPh. 91 9] and will be at his risk, the carrier being, as an involuntary bailee, responsible for ordinary negligence only. [^Hudson v. Baxendcde, 2 H. & N. 575 ; G. W. Bail- way V. Crouch, 2 H. & N. 491, 3 H. & N. 183 ; Heugh v. London and North-Western By. Co., L. R. 5 Exch. 51.] Railway Com- § 36. When two railway companies are connected in FoinUmffic"'^ business together, so that one of them receives goods to be arrangements, conveyed over the line of the other, there is only one con- tract. The liability of the first is just the same as if they had been owners of the whole railway, and does not end until there has been delivery in the ordinary and usual way. \3'IusGham]p v. Lancaster and Preston By. Co., 8 M. & W. 421 ; cited in Sh&pherd v. Bristol and Exeter By. Co., L. R. 8 Ex. 195 ;■ and this and other cases cited in Smith's L. Ca. vol. i. p. 221.] The question whether the consignor or consignee is the right person to sue the carrier in cases of loss, will be solved by considering upon whom the loss would fall in case of its not being recovered from the carrier. Thus in the case of goods shipped or sent on account and at the risk of the consignee, the consignee is the person to sue ; in which case the consignor would be considered the consignee's agent to retain the carrier. Otherwise, where the goods are sent merely for approval or OAEKIEKS BY RAILWAY. 33 where the consignee is really the agent of the consignor. [Smith L. Ca. vol. i. p. 219—20, and cases there cited.] (a) § 37. The practical monopoly enjoyed by railway com- EaUway and panies in the carrying trade enable them easily to evade ^''^^ '^™®° the law relating to common carriers, by making special contracts with their customers by public notices stuck up in their offices, notices on the invoices, &c., and otherwise. [Austin V. Manchester, &o. By. Co., 10 C. B. 454; Smith L. Ca. vol. i. p. 211.J But this practice is now controlled by the Eailwayand Canal Traffic Act (17 & 18 Vict. c. 31, s. 7, extended by 26 & 27 Vict. c. 92, s. 31), enacting, in eiFect, that no special contract as to carrying goods by companies of the specified class shall be binding on the other party unless signed by him or by the person deli- vering the goods into their hands, nor unless the stipula- tions of such contract limiting the liability be reasonable. The word " reasonable," as usually happens when this word is employed in a statute, has been a fertile mine of litiga- tion. On this point I beg to refer to Smith's Leading Cases, vol. i. p. 206 — 219, and 1 shall only cite here one or two of the most recent cases. In a contract for carriage of meat, this condition has been held reasonable : " The company will not be responsible for any damage to any meat on the ground of loss of market, provided the same be delivered within a reasonable time after the arrival (a) In case of contract made with Company A. for transit, in the oourso of wliich the goods are banded over to Company B., there is no privity of contract between Company B. and the consignor [Bristul and Exeter Railway Company v. Collins, 7 H. of L. Ca. 194]. While adverting to the question of privity of contract, I must note tw9 decisions which have been given regarding the contract to transmit a message by telegraph. The Queen's Bench, in Playford v. United Kingdom Telegraph Company, L. R. 4 Q. B. 706, decided tliat the receiver of the message could not sue the Company for negligence, as there was no privity of contract with him. The Court of Exchequer, in Menleel v. Pope, Nov. 10, 1870, decided that the Company erroneously transmitting a message do not act us agents for the sender, their only authority being to transmit the right message. If these decisions are both law, it follows that the receiver of a message erroneously transmitted, and acting upon it to his cost, has no remedy. Kome of the American Courts cut the knot by holding the Telegraph Company to be a common carrier of measages. Shearman, § 554. A doctrine not without some sense, though it savours of the ancient Proculian heresy as opposed to the doctrine of the Sabiniacs. 34 EXACT DILIGENCE. thereof at the station from whence delivery is to be made." [Lord V. Midland By. Co., L. E. 2 C. P. 339.] In a contract for the conveyance of cattle, a condition stipulating that " the owner undertakes all risks of loading, unloading, and carriage, whether arising from the negligence or default of the company or their servants, or from default or imper- fection in the station platform or other place of loading or unloading, or of the carriage in which the cattle may be loaded or conveyed, or from any other cause whatever," has been held unreasonable, notwithstanding an offer on the part of the company to grant free passes to persons having the care of live stock, as an inducement to owners to send proper persons to take care of them. And conse- quently the company were held liable for damage, having unloaded the cattle trucks at a place where, for want of the line being properly fenced, they strayed on the line and some of them were killed. [^Rooth v. N. JE. By. Co., L. E. 2 Ex. 173.] It has been held that the Eailway and Canal TrafBc Act does not apply to a special contract by which a company exempts itself from liability or loss on a railway not belonging to or worked by them, and therefore that such a condition endorsed on the ticket of a passenger, although not signed by him, was a protection to the company against liability for loss of the passenger's luggage occurring on lines beyond the company's control. [Turner v. ^S'. K By. Co., 17 W. E. 1096 ; Zunz v. ;S^. E. By. Co., L. E. 4 Q. B. 539.] The master or owner of a general ship is ;prima facie _ a common carrier, but his responsibility may be either enlarged or qualified by the terms of the bill of lading, if tliere be one. [Lancroni v. Dry,ry, 8 Exch. 173.] But the special contract will not, unless the terms are express, exempt from liability for negligence (in the ordinary sense), although it will shift the onus of proof of negli- gence. [Brass v. Maitland, 6 E. & B. 470 ; Ohrloff v. BriseaU, "' The Helene,' L. E. 1 P. 0. Ap. 231 ; Leuw v. Dudgeon, 16 W. E. 80 ; Qrill v. Iron Screw Collier Co., L. E. 1 0. P. GOO ; Martin v. G. I. Peninsular By. Co., L. K COMMON OAKRIERS. 35 3 Ex. 9 ; Czech v. Gen. St. JSfav. Co., L. E. 3 Ex. 14.J Wai-ranty of seawortlimess of the vessel is, moreover, au implied term in any contract for carriage of goods by sea, as well as in every voyage policy for insurance of the vessel. [Qwefceo Marine Insurance Co., L. E. 3 P. 0. Ap. 240.] The owners and master of a ship acting as common carriers are from the nature of their liability, as above explained, sometimes liable for the negligence of those over whose operations they have no control whatever. This I have pointed out as occurring in other cases where the law demands more than ordinary care. Consequently, although the operation of stowage is usually carried on by a stevedore, who is an independent contractor [ilfwray V. Gurrie, 19 W. E. 104], yet the owners are as common carriers liable for his negligence (a). § 38. The peculiar responsibility of the common carrier is usually said to arise out of the custom of the realm. This is a prevalent mode of expression to account for a legal principle of which lawyers do not know or care to acknow- ledge the real source. And the real source is (like that of more of our common law than its exponents formerly cared or ventured to confess) to be found in the Eoman law. The principles of the Eoman law upon the subject were based upon the well-known passage in the edict of the Praetor : " Nautae Caupones Stabularii quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo." [D. IV. 9.] And the public utility of the principle led to its extension to carriage by laud as well as by sea, and its adoption into the law-merchant of the civilized world. § 39. (6) The contract to carry passengers (l) does not (») Coi tract (a) Where there is a charter-party the question who are the responsible owners depends on whether the terms of the charter-party contain a demise of the ship itself. l_Sandeman v. Scurr, L. E. 2 Q. B. 86.] The register is prima facie evidence of ownership. [Bibhs v. Boss, L. E. 1 Q. B. 534.] (6) To establish a contract to carry a passenger, it is not always neces- sary that the passenger should have paid the fare or be provided with a ticket. It is sufficient tl)at he be travelling without intent to defraud the Company, or to evade payment of the fare. Great Northern By. Co. v. D 2 36 EXACT DILIGENCE. to cany pas- coiue within the function of a common carrier ; and in the eonf r ano/''^' case of such a contract it has been held by great authority for hire. that no more than ordinary care as to the sufficiency of the carriage is implied ; and that it is enough if the carriage be sufficient so far as the eye can discover. [Sir J. Mans- field in Christie v. Griggs, 2 Camp. 79, 111. 145, Ad. 564.] But owing to an appreciation of the peculiar danger in- troduced by travelling in stage-coaches, judges and juries have combined gradually to tighten the responsibility and to exact a higher degree of care than that corresponding to ordinary negligence. [Bell's Commentaries on the Law of Scotland, 6th ed. p. 153. As to principles on this subject recognised in the American Courts, see Shearman, §.266, 447 J And this ^tendency has re- ceived a new impetus through the introduction of railways with their more occult causes of risk and the practical monopoly of conveyance which they enjoy (a). The respon- sibility for a latent defect in the construction of a railway carriage resulting in a smash was much considered in the recent case of Bedhead t. The Midland By. Co. (L. E. 2 Q. B. 412. In the Exch. Ch. L. E. 4 Q. B. 379.) The casualty occurred through the breaking of the tyre of a wheel owing to a flaw in the welding caused by an air bubble. There was evidence to the effect that such a Harrison, 10 Excb. 376; Austin v. Great Western By. Co., L. E. 2 Q. B. 442 ; Hamilton t. Caledonian By. Co., Comt of Session, 19 D. 457. Of. The Lion, L. E. 2 Adm. 102. As to tlie Datare of the contract to carry ])assengers' luggage, .see Beeher v. Great Eastern By. Co., L. K. 5 Q. B. 241 ; Great Western By. Co. v. Tulley (C. P.), June 23 and Nov. 11, 1S70, 19 W. K. 154. (a) I note also the impetus to litigation on these cases in England given by Lord Campb.ll's Act, entitled " An Act for compensating the Families of Persons killed by Accidents " [9 & 10 Vict. c. 93], which practically ex- tended to England the remedy long known in Scotland under the name of Assythement. This Act is, as to parties, amended by 27 & 28 Viet. o. 115. [See Dicey on Parties, Rule 98.J The effect of this Act as interpreted by decision is not precisely iileiitical with the remedy so long known in Scotland, the basis of which, as its name implies, is assythement or solatium. In England the measure of damages is based merely on a calculation of the pecuniary loss. \^Blalce v. Midland By. Co., 18 Q. B. 93 ; Pym v. Great Northern By. Co., 2 Fost. and Fin. 619 ; 4 Best and Sm. 396.] It has been held that accord and sutisfaction with the deceased in his lifetime is a good plea to an action under Lord Campbell's Act. {Head v. Great Eastern By. Co., Q, B. IC W. E. lOlO.j CARRIERS OF PASSENGERS. M7 defect would sometimes occur in spite of the greatest care on the part of the manufacturer ; that it could not be dis- covered in the process of manufacture nor afterwards, either by the eye or by the ringing of the metal. Lush, J., who tried the case at nisi prius, left the case to the jury, telling them that if the accident was occasioned by any neglect on the part of the de- fendants, they should find for the plaintiff, but that if it was occasioned by a latent defect in the wheel, such that no care or skill on the part of the defendants could detect it — the verdict should be for the defendants. The jury gave their verdict for the defendants. The direction given by the judge was held to be right, both by the Court of Queen's Bench and by the Court of Exchequer Cliamber. It was agreed by all the judges that the carrier of passengers was not (like a common carrier of goods) an insurer ; but Blackburn, J., was of opinion that, although not insurers, the Railway Company were bound, at their peril, to supply a carriage reasonably fit for the journey ; and that it was not enough that they made every reason- able effort to secure that result, if the carriage was in fact not sufficient. In other words, he deemed the obligation of the Company to the passengers equivalent to a warranty of the reasonable sufficiency of the vehicle he supplies. He consequently thought the defendants liable for the failure to supply a vehicle in fact reasonably sufficient, although such failure was occasioned by a latent defect (a). This view he supported by the analogy of the law which obliges a shipowner to furnish a ship good and capable for the voyage. § 40. When this case of Bedhead v. Midland By. Co. came into the Court of Exchequer Chamber, it was so adjusted as to put the question categorically whether the defendants were liable for an accident " owing to a latent defect in the tyre which was not attributable to any fault (a) This view of Blackburn, J., seems in conformity with tlie rule a/loptefl in tlie State of New York. Alden v. New York Central By. Co., 13 N. Y. 9 ; Shearman, § 2C7. 38 EXACT DILIGENCE. on the part of the manufacturer, and could not be detected previously to the breaking." This question was answered in the negative. And the judges were unanimously of opinion that there is no contract either of general warranty or insurance (such as that in the contract of a common carrier of goods), or of limited warranty (as to the vehicle being sufficient) entered into by the carrier of passengers, and that the contract of such a carrier and the obligation undertaken by him, are to take due care (including in that term the use of skill and foresight) to carry a passenger safely. To the argiiment of Blackburn, J., it might per- haps be answered .that the case of a shipowner is different, since it is inconceivable that an unseaworthy ship should be sent to sea without presumable fault on the part of the owner. For a defect rendering a ship unseaworthy could not occur in the case of a new ship, without negligence or rashness in the construction ; nor, in the case of an old ship, without the existence of facts of which the owner and his servants may fairly be presumed to be well aware (a). (i) Stand for § 41 . (i) The responsibility of a carrier of passengers li(f exhibition" ^J ^^^^ (^) Conveyance has been considered the same as for payment, that applicable to a case where a building or stand is erected for viewing a public exhibition by one who takes money from those using, it. In this case therefore, also, (a) A point wliioh may hiere be mentioned in connection with the con- tract to carry passengers by railway is this : when is a passenger entitled to alight on the train stopping? or what is an invitation to alight? On this point the decisions are varions and contradictory. The following are the latest cases ; and in the Report of these all the others are cited : Siner v. Great Western By. Co., L. K. 4 Ex. 117 (Ex. Ch.) ; CocUe v. Londm & S. E. By. Co., L. E. 5 C. P. 4.57 ; Bridges v. NoHh London By. Co., L. E. 5 C. P. 459, note, and in Ex. Oh. Nov. 30, 1870 ; Whittaker v. Manchester, &e. By. Co . 22 L. T. (N.S.) .'545 ; Beynolds v. South Western By. Co., C. P. Nov. 16, 1870 ; Praeger v. Bristol & Exeter By. Co., 23 L. T. (N.S.) 366 (Ex.). (fc) Although in the judgment of Francis v. Cockerell " carrier of pas- sengers " is mentioned, the parallel obviously intended is not the contract simply to carry passengers, but tlie contract to carry passengers by means which in the absence of extreme precaution would be hazardous. This case has been canvassed as a strong instance of judge-made law. If, however, it be borne in mind that the decision implies a consideration of the great hazard presented by a race-stand, if insufficiently constructed, we may at once find a rational basis for the judgment, and a criterion for applying it. CAEBIERS OF PASSENGERS. 39 something more is necessary than the care correlating to ordinary negligence. There is deemed to be a positive duty on the proprietor to adhibit due care and skill in the erection of the stand, and he is not exonerated by having employed an independent contractor (being a competent person) — if in fact due care and skill has not been ad- hibited — although the defect was such as could not have been discovered by a survey made subsequently to the erection being completed. [Francis v. CocJcerell, L. E. 5 Q. B. 184, 5U1 (Ex. Oh.).] This last case and the case of Bedhead between them, very fairly define the degree and kind of negligence which is sufficient to infer liability in the contract to carry passengers by fast conveyance. And it comes to this, that the carrier is bound to use the most exact diligence, and is answerable for any negligence however slight ; and not only for his own personal default but for the default of all employed by him, or from whom he has purchased work done or skill employed upon the thing. He is also bound to use such precautions for the prevention of accidents as a reasonable person having the management of the line would adopt for such pur- pose [Danid v. Metropolitan By. Co., L. E. 3 C. P. 2 1 6, 591] (a). Where an accident happens to a passenger in a carriage on a railway by the carriage breaking down or running ofifthe rails [Dawson v. Manchester, &e. By. Co., 5 L. T. (N.S.) 682], or by the train being severely jolted against tlie permanent buffers at a terminus [Bwlce v. Manchester, &c. By. Co., 18 W. E. 694 (0. P.)], there is prima facie evidence from which a jury may infer negligence. A railway company carrying passengers seem to be equally responsible for the state of the permanent way as for the sufficiency of their carriages. \Fym v. Great Northern By. Co., 2 Fost. & Fin. 619; Great Western Ey. of Canada, 1 Moo. P. 0. (N.S.) 106 ; Grote v, Chester and Holyhead (a) Here note to the same effect expressiona used by Hubbard, J., in an American case, llngalh v. BilU, 9 Meto. 1 ; Shearman, § 208 ; cf. Anderson V. Pyper (jury case in Scotland), 2 Mur. 261 ; Bremner v. Williams, 1 Carr. & P. 414.] 40 EXACT DILIGENCE. By. Co., 2 Exch. 251.] This responsibility would in great measure follow from the ground stated § 18 supr., but it may be noted that here also the peculiar risk attendant upon rapid travelling is an element in the ratio of the great care required. Consequently the same peculiar degree of care does not extend to those accommodations for passengers which have nothing to do with the rapid nature of the locomotion. In these it seems that no more is required than that the accommodations be reasonably sufficient for the purposes of ingress, egress, &c., and for persons using them in a reasonable way. {OrafterY. Metro- politan By, (slippery stair), L. E. 1 C. P. 300 ; Blackman & another v. London, Brighton & South Coast By. (stumbling over weighing machine on platform), 17 W. E. 7(59 C. P. ; Bigg v. Manchester, &e. By. Co., C. P. 14 W. E. 834. But cf. Leishman v. London, Brighton & South Coast By. Co., Ex. 19 W. E. p. 106, where staircase was out of repair by being worn away. This was held evidence of negli- gence.] § 42. A railway company, in their contract with a passenger, have even been held answerable for the negli- gence of another company over whose line they have contracted to carry him. [Great Western By. Co. v. Blalce, 7 H. & N. 987; '31 L. J. (Ex.), 346; Buxton v. North Eastern By. Co., L. E. 3 Q. B. .549 ; and Thomas v. Bhym- ney By. Co., L. E. 5 Q. B. 226.] Tn the first of these cases there was an agreement between the companies under which arrangements were made for through pas- senger traffic. Under such circumstances the second com- pany may well have been considered the agents for the first for carrying out their contract with the passenger ; but in the last case there was no contract between the companies, only the defendant company had miming powers over the line of the other, and the decision was given, not without an expression of doubt and a suggestion that a different view may be taken by a higher Court unfettered by the judgments in the previous cases which appeared to CULPA (SIMPIA') — ATTORNEY AND CLIENT. 41 leave no room for distinction (a). Since it is now quite settled that a carrier of passengers is not an insurer, this liability, if it exist, must be grounded upon an implied contract of guarantee that due care shall be adhibited by the company over whose line the contracting company has running powers. The view that such a guarantee is implied in the contract to carry passengers is borne out by the case of John v. Bacon [L. R. 5 0. P. 437], where damage occurred to a passenger in the transit over a hulk not belonging to the shipowner contracting for the passage; the casualty being due to a hatchway which had been negligently left unprotected. II. Culpa (simply). § 43. Having considered the cases in which less than Cm?i3o (simple') an ordinary degree of negligence will infer liability, and ^PJ^|j^|° ™°^* where consequently a more than ordinary degree of 19 a variety of diligence or care is exacted, it will not be necessary to ^^t arising dwell at much length upon the cases where an ordinary o"t of con- degree of care only is owed. These are necessarily numerous and various. They include all cases arising out of contracts which contemplate mutual advantage, and where there is no warranty either express or implied under the principles already adverted to. They include also a great variety of circumstances not arising out of contract, but where persons are thrown into collision in the ordinary transactions of life. § 44. It would be out of place in this short essay to attempt to enumerate the various species of facts which have been deemed sufficient or insufficient to warrant a jury in inferring negligence where ordinary negligence is in question. The duties of legal practitioners are however in a peculiar degree within the cognizance of the Courts of Law and Equity, and therefore the acts or omissions (o) This is indeed very probable. For it is extremely difiSouIt to recon- cile the decision with the judgment of the Court of Exchequer Chamber in Daniel v. Metropolitan By. Co., L. K. 3 C. P. 591. When a collision happens on the defendant's line, and there is no evidence to show under whose control the train causing the collision is, it is presumed to be the train of the defendaut^. [Ayles v. 8. E. By. Co., L. B. 3 Ex. 14G,] client. 42 CULPA (simply). from which injurious negligence can be inferred are here more precisely than in other professional and private duties defined as matter of law {a). The following principles have been established by decision : — Solicitor and § 45. The relation of solicitor and client implies an obligation on the part of the former to bring a reasonable amount of care, diligence, skill, and knowledge to the performance of the business entrusted to his charge. [Hart V. Frame, 6 CI. & Fin. 210 ; Allen v. Clarh, 1 N. R. 358 (Q. B) ; Parler v. Bolls, 14 0. B. 691.] The following facts have been held to amount to breaches of this obligation. Misdescription in the particulars of sale prepared for a sale under the authority of the Court of Chancery [Taylor v. Gorman, 4 Ir. Eq. Eep. 550]. Vendor's solicitor causing abortive expenses to be incurred by his client executing a conveyance, while the title deeds were (as he knew) in the hands of an adverse party \Potts V. Dutton, 8 Beav. 493]. Allowing client to enter into unusual covenant without explaining to him the liability incurred \8tannard v. UUithorne, 10 Bing. 491]. Solicitor of purchaser or intending lessee omitting to investigate the title as far as the conditions of sale will allow him {'Knights v. Quarles, 2 Bro. & B. 102; Allen V. Clark, 1 N. K. 358J. Omitting (in a case where counsel is employed) to lay before counsel the whole abstract received from the purchaser [Treson v. Pearman, 3 Barn, and Cress. 799]. Solicitor of intending mortgagee omitting to make the proper searches [Cooper v. Stephenson, 21 L. J. N. S. (Q. B.) 292 ; Graham (Court of Session), Mar. 4, 1831, 9 Sh., 543], or to give the proper notices to secure priority of title [Watts v. Porter, 3 Ell. & Bl. 743. LiUie (Court of Session), 13 Dec. 1816, F. C.]. It is not, however, the proper duty of the solicitor to ascertain the value of the subject of the mortgage [E.ayn£ v. Rhodes, 8 Ad. & Ell. (N. S.), 342] ; nor is it incumbent (a) For the collection of cases cited in the analysis immediately follow- ing I am mainly indebted to my friend Mr. Blphinstone of the Chancery Bar. ATTORNEY AND CLIENT. 43 on him to warn the client against every possible folly ; so in a case where the mortgagee, unknown to his solicitor, advanced the money without first obtaining the security, the solicitor was not deemed guilty of negligence for not having cautioned him not to do so [Brumhridge v. Massey, 28L.J. (N.S.)Ex. 59].- When a solicitor undertakes to prepare a security for money under circumstances which import neither a good legal consideration nor a transaction contra honos mores, it seems that a solicitor preparing the security by way of mere agreement and not by deed under seal would be guilty of negligence [Parker v. Bolls, 14 C. B. 691]. Again, a solicitor having taken upon himself the office of receiver of rents, though without any appointment as receiver, has been held liable for the rents which he omitted to collect [ Wood v. Wood, 4 Russ. 558]. He has been held liable for the expense caused by the omission to get immediate correction of a mistake in drawing up in a decree of the Court [In Be Bolton, 9 Beav. 272], and for all expenses and loss caused by an order got from the Court of Chancery upon a misrepresentation of facts when the truth might have been ascertained by reasonable care [Be Spmeer, 18 W. E. (Ch.) 240J. § 46. The liability of an attorney or solicitor in the con- duct of causes is well summarised by C.J. Tindal as follows: — " He is liable, generally, for the consequences of igno- rance or non-observance of the rules of practice of the Court (in which he proceeds) ; for the want of care in the preparation of the causes for trial or of attendance thereon with his witnesses ; and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. Whilst on the other hand he is not answerable for error in judgment upon points of new occurrence or of nice or doubtful construc- tion, or of such as are usually intrusted to men in the higher branch of the profession of the law." [Qodefroy v. Bolton, 6 Bing. 468.] 44 CULPA (simply). § 47. This short statement of principle by 0. J. Tindal is borne out by the following cases. On the first branch, i.e., where liability attaches — Neglect or ignorance of rules of the Court, Cox v. Leach, 1 C. B. (N.S.^ 617 ; Hwnier r. CaldweU, 10 Ad. & Ell. (N.S.) 69; FranMand v. Cole, 2 Cromp. & Jerris, 590 ; Suntley- v. Bulwer, 6 Bing. N. C. 511 ; Stohes y. Trumper, 2 K. & J. 232. Seeing to attendance of witnesses, Beece y. Bighy, 4 Barn & Aid. 202. Neglecting to retain counsel, Bex v. Tew, Sayer, 50 ; to deliver the brief, Be Bowpigny y. Peale, 3 Taunt. 484 ; and to attend the trial himself or by one of his clerks so as properly to instruct counsel, Bawhins y. Harwood, 4 Ex. 503. To attend at an arbitration where counsel were not retained, SwanneU y. MUs, 1 Bing. 347. Neglecting to inform client that if he proceeded in an action without the consent of the creditors he would be liable for the costs, Allison y. Bayner, 7 B. & C. 441. Abandoning case without reasonable notice to the client although not supplied with funds, Hohy v. Built, 3 Barn. & Aid. 349. Neglecting while suing upon French bills of exchange to ascertain whether they had been indorsed as required by French law. Long v. Orsi, 18 C. B. 610. On the second branch, i.e., where the attorney is excused, the following cases may be cited : Pitt v. Galden, 4 Burr. 2066; Montriou y. Jefferys, 2 Carr & P. 113; Baihiev. Chandless, 3 Camp. 17* ; Laidler y. Elliot, 3 B. & Cr. 738 ; Elhington \. Holland, 9 M. & W. 661 ; Chapman v. Van Toll, 8 Ell. & Bl. 407 ; Buhner y. Oilman, 4 Man. & Gv. 108. It is in cases of this last description that the expres- sions " gross negligence," " orassa negligentia," " lata culpa," haYe been applied to the kind of negligence or ignorance which will make an attorney liable. It is to be regretted that these expressions have had the sanction of a judge enjoying so highly the reputation of a civilian as Lord Mansfield, because the expressions tend to •obscure the line of demarcation between the degrees of liability for negligence as understood by the classical jm-ists. It is easy, however, to understand the intention of the expres- ATTORNEY AND CLIENT. 45 sions as applied by Lord Mansfield and others to the negligence of attorneys. " God forbid," says Abbott, 0. J. (in Montriou v. Jefferys), " that it should be imagined that an attorney or a counsel, or even a judge, is bound to know all the law ; or that an attorney is to lose his fair recompense on account of an error, being such as a cautious man might fall into." This, is really all that is meant in this class of cases, where with an affectation of learning borrowed from the Pandects the expressions culpa lata, crassa negligentia, have been used. The expression considerable negligence, which is used in some of these case?, is much preferable, and may well be employed to indicate culpable default as contrasted with that occasional failure in diligence or knowledge which the inherent difficulty of the subject renders almost inevitable. § 48. An attorney cannot get rid of responsibility by consulting counsel when the law would presume him to have the knowledge himself [Godefroy v. Dalion, 6 Bing. 469] ; nor is it enough that he acted on the advice of counsel unless the advice have been obtained bond fide on a case fairly stated [Be Clark, 1 De G. M. & G. 43 ; Fray v. Voules, 1 El. & El. 839] ; nor imless the advice have been properly pursued [Andrews v. Hawley, 26 L. J. Ex. (N.S.), 323 j. § 49. An attorney is not guilty of actionable negligence if he enters into a compromise without the consent of the client provided he acts londfide and with reasonable care and skill, and the compromise is for the benefit of the client and not made in defiance of his express prohibition [Chown V. Parroti, 14 C. B. (N.S.), 74 ; Prestwich v. PoUy, 18 0. B. (N.S.), 806]. But he is liable if he does so against the client's express prohibition, even under the advice of counsel [Fray v. Voules, 1 El. & El. 839]. § 50. The attorney or solicitor is equally responsible whether the breach of duty has arisen through his own default or through the default of his agent [Collins v. 46 CULPA (simply). Griffin, Barnes, 37 ; Simmons v. Bose, 31 Beav. 11 ; cf. Corporation of Ruthin v. Adams, 7 Sim. 345] ; of his partner [Norton \. Cooper, 3 Sm. & Giff, 375, 384J ; or of bis clerk [Floyd v. Namgle, 3 Atk. 568]. § 51 . When an action is brought by a client against his attorney or solicitor for negligence he must state and prove negligence in fact, or at least state and prove circumstances from which negligence is implied by necessary legal inference \Purves v. LandeU, 12 CI. & Fin. 91]. When negligence has been proved, in consequence of which judgment has gone against the client, the client is not bound to show that but for the negligence he could have succeeded in the action, it is for the solicitor to defend himself if he can by showing that the client has not been hurt by his negligence [Qodefroy v. Jay^ 7 Bing. 413]. § 52. On the other hand, when the client resists payment of his solicitor's bill of costs on the ground of negligence, it is for the latter to show affirmatively that he has done all that he ought to have done, and it does not lie upon the client to show negatively that the solicitor has neglected his duty [Allison v. Bayner, 7 B. & C. 441 ; Braeey v. Carter, 12 Ad. & El. 373; Eill v. Allen, 2 M. & W. 283]. If through negligence (in the sense which the law deems injurious) the solicitor has caused the suit to be lost [Stolces V. Trmnper, 2 ET. & J. 232], or if through such negligence all the previous steps in the suit or action become useless [Braeey v. Carter, 12 Ad. & El. 373], he is unable to recover any portion of his bill, even money paid out of pocket [Lewis v. Samuel, 8 Ad. & El. (N.S.), 685]. He cannot charge for work that is useless, whether done through wilful error or through inadvertence or inexperience [Potts v. Button, 8 Beav. 493 ; Stores v. Trumjper, 2 K. & J. 232 ; Rill v. FeatTierstonhaugh, 7 Bing. 569]. When an item of the bill of costs is for work which through the solicitor's default is useless the client may CHANCERY JUEISDICTION IN CASES OF NEGLiaENCE. 47 get ttat item struck out, but in respect of charges for work partially useless or in regard to whicli there has been some injurious negligence the remedy is by a cross action [Shaw v. Arden, 9 Bing. 287]. § 53. In certain cases a Court of Equity has visited a solicitor with the modified penalty of declining to allow him his costs in a suit to which he had by his own default become a necessary party, although such default might not have itself been deemed actionable negligence. This has occurred in a suit to set aside a voluntary settlement of family affairs by a person lying in extremis which contained no power of revocation \Forshaw v. Wel^y, 30 Beav. 243] If the solicitor had adverted to and performed his exact duty, he would have seen that such a power was inserted in the deed. The same result happened where a deed was set aside for undue influence. The solicitor who there had acted for both parties would, if he had acted with circumspection, have suspected the existence of undue influence and insisted on the grantor of the deed being separately advised [Harvey v. Moimt, 8 Beav.*452]. Another indirect consequence of negligence arising from the relation of solicitor and client as maintained by the Court of Chancery is, that the solicitor cannot derive any benefit to himself through his own negligence or ignorance. Thus, where on the contract for sale of land the purchaser required a fine to be levied, and the solicitor advised a fine to be levied without informing his client that such a pro- ceeding would revoke a devise contained in the client's will, the solicitor was not allowed as heir at law to reap any benefit from the transaction [Bulkeley v. Wilford, 2 CI. & Fin. 102]. " It does not follow that this would have been actionable negligence in the solicitor if he had not been personally interested. § 54. A bill in Chancery does not lie against an attorney How far the or solicitor for negligence unaccompanied by fraud [Broohs ^y-^^ °^ V. Bay, Dick, 572 ; Lulce v. Bridges, Pulha, 146]. Probably juriscHctronln a bill would lie in such a case of erassa negligentia as l^i^s'iois 48 CULPA (simply). ariaing out of Equity will construe to be fraud ICraig'y. Watson, 8 Beav. nGfi'li'^GiicG 1. •/ i_ «/ rf 427]. Indeed this would probably be the case not only where the conduct of a solicitor is in question, but in every case where a position of confidence is abused \^Overend, Ourney, & Co. v. Ourney, &e., 17 W. K. 719 & 1115;* Turquand v. Marshall, L. E. 6 Eq. 112]. V.O. Stuart^ seems to think that a bill may lie in a case of crassa negligentia in the sense of merely considerable negligence [^Chapman v. Ghajpman, L. E. 9 Eq. 276]. But there seems to be no instance of a successful suit of this last nature ; and in the case of Overend and Gurney above cited the bill was dismissed without pronouncing an opinion that the negli- gence of the directors was inconsiderable. Where costs in a suit or proceeding in Chancery are incurred through the negligence or improper conduct of a solicitor, the Court of Chancery has undoubted jurisdiction, and is accustomed to exercise jurisdiction on motion or petition in the suit, whether by the client or by another party to the suit, to order the solicitor to pay such costs \Gooh v. Broomhead, 16 Ves. 133; Bidley v. Tiflady, 20 Beav. 44; Be Spencer, 18 W. E. (Ch.) 240], or to disallow any such costs [Gooh V. E. of Bosslyn, Be HooJc, 3 Giff. 175]. It has been main- tained, on the authority of a dictum by Lord Hardwicke, that this jurisdiction of the Court extends to ordering amends generally for damage suffered by the client through the attorney's negligence [Floyd v. Nangle, 3 Atk. 568]. But I suspect that Lord Hardwicke only intended his observations to apply to a really gross case of negligence {culpa lata in the sense of the Eoman lawyers), from which wilful default is presumable (aequijaarata dolo). Indeed it is difficult to believe that the Court would give general relief on petition or motion except in a case where a bill would lie. At all events the Court if it has such a juris- diction as now adverted to, has a discretion to decline to exercise it [Dixon v. Wilkinson, 4 De C & J. 508]. And where a plaintiff whose bill had been dismissed with costs through the negligence of his solicitor failing to take the proper steps of procedure in due time after peremptory PRINCIPAL AND AGENT. -19 order, the Vice-Chancellor Shadwell made no order on the petition, deeming that he had no jurisdiction. [FranJdand y. Imcos, 4 Simon, 586.] It seems that the taxing master has, in taxing the bill of costs, no jurisdiction to entertain the question whether the attorney or solicitor was guilty of negligence in respect of the matters to which the items refer IMatchett v. Parker, .9 M. & W. 767 ; sed vide Matthews T. Livesley, 11 Exch. 221]. ; The claim for redress against the solicitor for negligence depends, of course, on the relation of solicitor or (attorney) and client having been constituted. So that an attorney was held not liable to an action for negligence when, in answer to a casual inquiry, he had given erroneous in- formation as to the contents of a deed to a person who was not Ills client [Fish v. Kelly, 17 0. B. (N. S.) 194]. ^ § 55. A right of action against an attorney for ne- gligence, whereby the fund for distribution amongst the \ plaintiff's creditors is diminished, ^passes to his assignee in bankruptcy as part of his personal estate. [Me Davies, 16 L, T. (N. S.) 127 ; Crawford v. Cinnamond, Ex. Ir. 15 W. E. 996.] This principle is, doubtless, not confined to the case of a solicitor, but would hold in the general case of an action by a principal against his agent for negligence. On the same principle the liquidator of a banking company which has suffered loss through the negligence of its directors by making reckless advances, &c., seems to be entitled to sue the directors for negligence so as to make the damages that may be recovered against them available as an asset of the company. This was done in the case of the Western Bank of Scotland, and the competency of the proceeding was held to be undoubted [Liquidators of Western Bank v. Douglas, &c., Court of Session, 22 D. 447, 24 D. 859]. Most of these actions were eventually compromised, but it is believed that considerable assets were recovered to the Company from this source. The failure of an attempt in the case of Overend, Gurney, & Co., to enforce a similar liability by a Chancery suit does E 50 CULPA (simply). not, I think, interfere with the principle here laid down. I do not say that the negligence in that case would have been sufficient to support an action at law. The case of Turquand v.' Marshall, L. E. 6. Eq. 112, proceeded on the ground of breaches of trust amounting in Equity to fraud, or culpa lata aequiparata dolo (a). (a) This may be the best place to note some miscellaneous cases which I select from the mass of cases concerning ordinary negligence, not on account of their importance, but as being the most recent of the cases which Ijhave not elsewhere in this essay occasion to comment upon. — The contractor under the Metropolitan Board of Works liaving opened a trench in a high- way for tlie purpose of constructing a sewer, and afterwards reinstated it by properly and completely filling in the trench, was held not liable for damage to a horse, iive months afterwards, stumbling over a hole in the road caused by the natural subsidence of the materials. [Hyams v. Webster, L. E. 4 Q. B. 138 (Ex. Oh.)]* An agent for the purchase of a public-house has been held liable to his employer for negligently conducting his business, although he advised his employer to go and examine the business for himself, and the employer have done so. - \_Smitli v. BaxUr, 15 L. T. (N. S.) 294.] A sub-contractor engaged on an unfinished building was held not liable to a custom-liouse officer, who was in the habit of passing that way (not being the regular entrance) to perform his duty in visiting a bonded vault, and who in doing so fell into an opening and was damaged. \_Gastley. Parker, 18 L. T. (N. S.) 367.] A person who holds possession or control of a thing in which another is interested, and wlio negligently parts with the possession or resigns the control so that a third party is enabled to commit a fraud, is liable at law to an action for negligence [Matthews v. Discount Corp., L. E. 4 C. P. 228] ; and in Equity his negligence will be taken into account as a reason essteris paribus of giving preference to those who without any negligence on their part are aifected by the fraud. [Bice v. Rice, 2 Dr. 73 ; Briggs V. Jones, L. R. 10 Eq. 92 ; Hunter v. Walters, Deo. 14, 1870, Equity, V.O. Malins.] A builder's workman employed in repaii'ing a railway station left a plank resting on the gates at the entrance. A servant of the railway shutting the gates at night was damaged by the falling of the plank. The builder's workman did not know of the gates being shut at night. Held no evidence of negligence for which the railway servant could sue the builder. [Pearson v. Pluclmett, C. P. 20 L. T. (N. S.) 662.] The door of a railway carriage shut by the guard on plaintiffs hand as he was getting in was evidence sufficient to go to a jury of injurious negli- gence. [Fm-dham v. L. B. & S. O. By., 17 W. R. 896.] But not when the plaintiti' had been in the carriage for about half-a-minute. [Bichardson v. Metropolitan By. Co., 16 W. E. 909.] In the defence of reasonable and probable cause to an action of false imprisonment, it is enough to show that the defendant acted upon in- formation on which a reasonable man might act. What this is seems to be a question for the Court ; but the defendant is not held bound to exhaust every possible means of information, provided he do not act on mere hearsay. * In damage by negligence arising out (if things done under the Metropolis Local Manage- ment Act, 1862, notice of action must be given pursuant to 25 & 26 Vict. c. 102, s, 106. IPouUum V. Thirst, L. E. 2 C. 1', 449.] CULPA (simply). 51 § 56. I have already alluded to the rule that where the question is one of ordinary negligence it is necessary to adduce some positive proof of negligence [Cotton v. Wood, 8 C. B. 568]. That being done, the latitude allowed to a jury is comparatively wide, (a) Where the ground of action was negligence in drilling a hole in a gas pipe, whereby the plaintiff's eye was dam- aged, it was proved that there were two known ways of doing this work, and that one was more dangerous than the other. The jury drew the inference of negligence from the fact that the more dangerous mode had been adopted ; and the Court declined to disturb the verdict [Cleveland v. Spisr, 16 C. B. (N. S.) 399]. Again, in the case of the Submarine Telegraph Co. v. Dickson [15 C. B. (N. S.) 759], it was deemed that a jury might infer negligence from the circumstance that the defendants hauled up their anchor without heed to the chance of fouling a submarine cable, although it was not averred that they knew the cable to be there (b). § 57. Liability for ordinary negligence applies, I think, Culpa to all cases where persons pursuing each their own busi- ^ j'^^t®^ ^J"] ness or pleasure, under similar circumstances, come into sons coming collision so as to cause damage to one of them. Thus the lJJidei°simi'lar occurrences commonly called accidents in the course of circumstances, the ordinary use of a public road, by riding, driving, &c., or by ships sailing on the high seas, come within this class. What I here mean by similar dreumstanoes may be ^Lister v. Ferryman, H. of L. April 29, 1870, 19 W. R. 9.] In Scotland it seems that reasonable and probable cause is » question for the jury (per Lord Colonsay in the same case). If trustees, by wilful neglect of their duty, i-ender a suit for the adminis- tration of the estate under their charge necessary, they will be ordered to pay the costs of it. [Jefferye v. Marshall, Ch. Not. 14, 1870, 19 W. E. 94.] (o) On this point see Munroe v. Leach, 7 Meto. 274 ; Sliearman, § 43. (6) In the cuse of the Clara KiUin, 19 W. E. 25, Aug. 2, 1870, the Ad- miralty Court drew the inference of injury from the circumstance of the cable being cut with a hatchet. This was of course a flagrant case of reckless damage. The case is chiefly important as showing that the juris- diction of the Admiralty Court extends to a case of this kind. E 2 52 CULPA (simply). illustrated thus : I have shown that the occupier of land or buildings owes a peculiar degree of care to all persons being where they have lawful right to be, and also to those who come on his land by invitation (in the technical sense above explained). But to a mere licensee he stands in a different position. Being there by the mere per- mission of the owner or occupier, and therefore pre- sumably for the pursuit of his own concerns, he is not entitled to charge the occupier as such with any higher degree of care tlian be is entitled to from any stranger or other licensee who is using or is upon the lands. That is to say, the owner or occupier stands to the licensee in the same position as any one else who is using or is upon the lands not unlawfully, and is answerable to the licensee for ordinary negligence only. With regard then to mutual duties of care, they stand in similar circumstances. The owner certainly, like any other person, would be answer- able for a trap set by him on the premises. And the owner or occupier may be held answerable for anything in the nature of a trap which he knows to be on the premises, and of which he negligently omits to warn the person going there with his permission. Omission and § 58. In a question of damage to the licensee through negligence of the owner, a distinction has been drawn between omission and commission, and it has been sup- posed that liability is inferred by the latter only [per Bramwell, B., in Southcote v. Stanley, 1 H. & N. 248 ; Gallagher v. Humphery, 10 W. R. (Q. B.), 664]. But the distinction has no rational ground. It is true that what is called ordinary negligence is commonly inferred from commission, that is to say from acts as distinguished from omissions. But this is not necessarily the ease. For suppose that there is, to my knowledge, a peculiar danger in the nature of a trap-^e.^., a concealed pit— on the premises, of which I neglect to warn the person who I know is going there by my permission; it is obviously unimportant whether the pit was dug by my orders, or commission. IN THE SAME BOAT. 53 whether it was there when I myself came to the premises, and I have only neglected to have it fenced. The reason for the remark having been made is probably this : that the commission is available to supply that positive evidence of negligence which is requisite in all cases where negligence of the ordinary degree has to be established. [Cotton v. Wood, June 9, 1860, 8 C. B. (N.S.)568.] § 59. I have observed that the liability of host to guest (like that of occupier to licensee) is merely for ordinary negligence {Souihcote v. Stanley, 1 H. & N. 248], A very similar relation exists between persons, one of \\hom having a carriage offers a seat in it to the other, who accepts it. These persons again may be fairly desci-ibed as persons each pursuing their own business or pleasure under similar circumstances. And accordingly, the owner of the carriage is in such a case not bound in the sort of diligence exacted from a person carrying passengers for hire, but only for negligence in the ordinary sense of the term [Moffatt v. Bateman, L.R. 3 P. C. Ap. 115]. It is true that, in the report of the judgment in this case, the expression grross negligence is employed to denote the kind or degree of negligence necessary to constitute injury. But this term, if it mean anything, is here merely used by way of comparison with the culpa levissima which would render liable a person carrying passengers for hire. For although the judges desiderated some positive proof of negligence it was clearly not in their minds to require proof of that kind of negligence (culpa lata) which the Eoman lawyers held equivalent to fraud. This case was as follows : — ^It arose in Australia. The plaintiff was a decorator and ornamental gardener in the service of the defendant, at a salary. On the day of the accident the defendant had asked the plaintiff to accompany him to a place about eight miles distant, for the purpose of assisting in papering some rooms, and offered to drive him there in his trap. The plaintiff had 54 CULPA (simply). with some hesitation consented to be driyen over by the defendant; his hesitation apparently having arisen from his knowledge of the defendant's reckless habit of driving. The carriage was overturned on the way, and the plaintiff damaged. Except that the kingbolt had broken, there was no evidence to show how the accident occurred. And to rebut any presumption that might have been raised upon this fact, as to want of care, evidence was given that the carriage was regularly examined by a blacksmith every three months. The jury gave a verdict for the plaintiff, and the question for the Court was, whether that verdict was warranted by thfe evidence. The Judicial Committee of the Privy Council in their judgment, de- livered by Lord Chelmsford, ' held that there was no evidence of such negligence ^s to warrant the verdict. § 60. I have observed thatthe expression gross negligence is loosely and improperly usSd in the judgment as express- ing the kind or degree of negligence from which liability in such a case might be inferred. It is true the expression gratuitous service is used to indicate the relation between the parties — the master offering a seat in the trap having, it is said, performed a gratuitous service for the other. And this might seem at first sight to indicate that the expression gross negligence is used advisedly, and in the technical sense equivalent to culfa lata. But gratuitous service does not really describe the nature of the case. The owner of the carriage was driving on an errand for his own purposes, although it may be taken that he gratuitously offered to give the plaintiff a seat. But that it was not a gratuitous service in the sense of inferring a more than ordinary degree of responsibility is evident if we compare the case with that which would have occurred if the defendant had not desired to go himself, and the plaintiff" (although there were other means of going) had asked for the loan of the trap and the defendant had lent it him. In this case doubtless the defendant would only have been liable for culpa lata in the proper sense of the RESPONSIBILITY FOE OTHERS. 55 word ; e. g., if he had lent the trap, knowing of a defect in the kingbolt such as would by natural consequence have brought the concern to grief. Such seems to be the purport of the decision in the case of McCarthy v. Young, Jan. 31, 1861, 6 H. & N. 329, arising out of a defective scaffolding gratuitously lent by the defendant to the plaintiff for the purposes of a contract in which the defendant had an interest, but where there was no obliga- tion on him to furnish the scaffolding. § 61. It may be noted that in certain of the cases where Liability for more than an ordinary kind of responsibility is implied, ^^Jeuis'^ °^ the party has been held liable for the negligence of those over whom he has practically no control whatever. In the class of cases where ordinary negligence and ordinary care are the criteria, liability for the acts of others is limited to the cases where the person charged with liability has or is presumed to have some control over the acts. So in cases demanding ordinary care, the master or principal is held responsible for the acts of servants or agents within their respective spheres of duty or authority. In such cases the principle resjaondeat superior is said to apply ; and the principle is sometimes expressed by the maxim, Quifacitjaer aliumfacit per se. § 62. The principle, to state it accurately, is this : — The Master liable master is answerable for the acts or omissions of servants ac'tiT'^^wi^diiii or workmen while pursuing the course of their employ- tlieir sphere of ment. The principal is answerable for acts or omissions ^f ^mploy-^" of his agent while acting within the scope of his ment. Prin- authority (a). So that if a servant driving his master's within the° carriage along the highway carelessly runs over a by- scope of his stander, or if a gamekeeper employed to kill game care- (a) In all eases where this maxim applies, the person suflferiiig the damage ha.s the option of suing the printiiDal, or the agent, servant, &o., who immediately caused the damage. Quaere whether they can be sued jointly. Dicey on Parties, pp. 465, 466. The master of a ship, though him- self in the position of an agent, may be sued for the negligence of all em- ployed on board to the same extent as if he were the ultimate principal. Pjid. p. 467 ; Story, Agency, § 315 ; Shearman, § 113. 56 CULPA (simply). lessly fires at a bare so as to shoot a person passing on ttie ground, or if a workman employed by a builder in building a house negligently throws a stone or a, brick from a scaffold, and so hurts a passer-by — in all these cases the person damaged has a right to treat the wrongful or care- less act as the act of the master (a). [Per Lord Cran worth in the Bartonshill OoUiery case, 3 Macq. 283.] And it is no answer for the master to say that he has taken the utmost care in the selection of his servants. So the master of a ship acting within the scope of his authority will make his owners liable for a collision caused by his negligence. What is § 63. The expressions " course of employment," " scope " "°"'^° °^ 1 » of authority," are phrases which haye become current " sphere of in the arguments and decisions upon this class of cases. of'autUorUy'^'^ Their meaning can only be accurately defined by the illustration derived from cases authoritatiTcly decided. Of these I shall cite two which have been recently decided, one in the Court of Common Pleas and the other in the Queen's Bench. In one the defendant was held liable, in the other, not. The distinction, if any, between the circumstances of these two cases is very fine. I cite them as the most recent cases, and as giving the key, through the cases cited in the arguments, to the whole train of authorities upon the subject. § 64. The case in the Common Pleas [Whatman v. Pear- son, L. K. 3 C. P. 422] was as follows : — The defendant, a contractor, was employed under the district board of G-reenwich in carting away the soil excavated from a highway there, during the construction of a sewer, and for this purpose employed a number of men with horses and carts. The duty of the men so engaged was to travel with their carts for a certain number of hours each day (a) Wliere scienter is of the essence of liability, knowledge by servants whose duty is to inform the master, may be imputed to the master, although a corporation. Stiles v. Cardiff Steam Nav. Co., 33 L. J. (Q. B.) 310. If I lend my servant to an independent contractor to be under his control, the contractor is liable for the way in which he does his work, and not I. [Per Brett, J., in Murray v. Cm-rie, C. P. Nov. 16, 1870, 19 W. E. 104.] CODESE OF EMPLOYMENT. 57 between the place where the excavation was going on and the place of deposit for the earth and rubbish, with an hour's interval for dinner, but never to quit their horses or carts, or leave their work. One of the men, conti-ary to his instructions, went home to dinner at a place about a quarter of a mile out of the line of his work, and left his horse and cart in the street before his house : the horse had his bridle off and a nosebag on, and there was no one to look after him. While the driver was thus absent, the horse ran away and damaged the plaintiff's railings, for which action was brought. The judge at the trial left it to the jury to say whether the driver had been guilty of negligence, and whether he was at the time acting within the course of his employment. The jury gave their verdict for the plaintiff- on both points. The Court held that the question had been properly left to the jury, and that the verdict was justified by the evidence. § 65. The case in the Queen's Bench [Storey v. Ashion, L. R. 4 Q. B. 476] was this : — The defendant was a wine- merchant having offices in Vine Street, Minories. On the day in question (Saturday) the defendant sent a clerk and carman with a horse and cart, to deliver wine at Black- heath, They delivered the wine and received some empty bottles, and it was then the duty of the carman to have driven back direct to the defendant's offices, left the empties there, and taken the horse and cart round to the stables, which were near. Instead of doing this, the carman, within a quarter of a mile from home, it being then after business hours (3 p.m. Saturday), at the persuasion of the clerk, turned off in another direction on an errand for the clerk's private behoof, and while driving along the City Eoad in pursuit of this errand heedlessly drove over the plaintiff. The question for the Queen's Bench was, whether the defendant was liable for the negligence of the carman : and this question was decided in the negative. 58 CULPA (simply). Cockburn, C. J., said, " The true rule is, that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant. I am very far from saying, if the servant, when going on his master's business, took a somewhat longer road, that, owing to this deviation, he would cease to be in the employment of the master so as to divest the latter of all liability : in such cases it is a question of degree how far the deviation could be considered a separate journey. Such a consideration is not applicable to the present case, because here the carman started on an entirely new and independent journey, which had nothing at all to do with his employment." § 66. In the judgment last cited the opinions of Maule and Cresswell, J. J., in Mitehell y. Crassweller [13 C. B. 237 ; 22 L. J. (0. P.) 100], are quoted with appro- bation. The case of Mitchell v. Crassweller was a case where a carman in the employ of the defendant had returned from an errand and got from his employer the keys of the stable for the purpose of putting up his horse, and then, to oblige a fellow-servant and without leave or knowledge of the master, drove away to a place at some distance, and on returning committed the damage complained of. The master was held not responsible. Maule, J., observed, " The master is liable even though the servant, in the performance of his duty, is guilty of a deviation or a failure to perform it in the strictest and most convenient manner. But, wliere the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of the servant in doing it." Cresswell, J., said, "I agree that in the circumstances the carman cannot be said to have been acting in the employ of the defendants at the time the injury com- plained of was done, so as to make them responsible in COURSE OF EMPLOYMENT. 59 damages for his negligence. No doubt, if a servant, in executing the orders, express or implied, of his master, does it in a negligent, improper, and roundabout manner, the master may be liable. But here the man was doing something which he knew to be contrary to his duty, and in violation of the tru?t reposed in him. I think it would be a great hardship upon the employers to hold them responsible under the circumstances " (a). § 67. The case in the Common Pleas (Whatman v. Pearson) is perhaps an extreme case for the inference of the master's liability. But it is not absolutely incon- sistent with the other cases above cited, and it seems authorized by the dicta of Parke, B., in his charge to the jury in Jod v. Morison (6 C. & P. 503), which have been subsequently quoted with approbation. In that case the occurrence seems to have happened at a considerable dis- tance from the direct line where the cart should have been in the due course of business. Yet Parke, B., left the case to the jury with these observations : " If the servants, being on their master's business, took a detour to call upon a friend, the master will be responsible. If you think the servants lent the cart to a person who was driving without the defendant's knowledge, he will not be responsible. The master is only liable where the servant is acting in the course of his employment. If he was (a) I mention here also the case of Foulton v. South Western By. Co. [L. R. 2 Q. B. 534], which shows that a Company cannot be made liable for the act of their servant doing something which is quite ultra vires of the Company itself. The Eailway Company were, therefore, held not liable for their servant's act in unlawfully detaining a man in charge of a horse on the assumption that he had not paid the fare for the horse. Had the Com- pany's Act justified the detention of a man for not paying a horse's fare, and the Company's servant been only mistaken in his assumption, the Company would have been liable. Cf. Walker v. South Eastern By. Co., 18 W. E. C. P. 1032 ; AUm v. L. & S. W. By. Co., Q. B. 19 W. E. 127. To exonerate the master it is certainly not sufBoient to show that the act was unauthorised by the master. [Po^e v. De/nes, 7 Best & Smith, 137.] In an action lor careless steering, tlie circumstance of the barge being the property of the defendant has been held prima fade evidence that it was steered by his servant. Joyce v. Capel, 8 Carr & P. 370 ; Norris v. Kohler, 41 N. Y. ; Shearman, § 71. But such evidence may be rebutted by evidence to the contrary. Shields v. Edinburgh, &c., By. Co. (Court of Session), 18 Dunlop, 1199. 60 CULPA (simply). Exception to the maxim going out of the way, against his master's implied com- mands, he will make his master liable ; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable " (a). § 68. 1 cite here, as an instance of the responsibility of the owners for the master of a ship, the case of the Thetis (L. E. 2 Adm. 365). In making a deviation in order to perform salvage services, the master was held as acting within the general scope of his authority, and therefore the owners were held liable for damage caused by a collision occurring through the master's negligence while so deviating from his course. § 69. To the principle " respondeat superior " there is one important limitation. If there is a relation existing superior" by Contract between the person damaged and the person damage arises ^J whose Servant the damage is caused, and if the fromarislc damage, although immediately caused by the servant, contract of i® oi such a nature that the risk of such damage is a risk employment incident to the contract, the maxim resjoondeat superior does not apply. The sufferer is presumed to have con- templated the risk as part of the consideration for the benefit promised to him by the contract, and he has no remedy against the master unless the master be per- sonally guilty of negligence (h). (a) It is not necessarily enough to absolve the master that the act causing the damage was contrary to the master's general orders. This is distinctly laid down in the case of an Indictment for nuisance. [^Meg. v. Stevens, L. E. 1 Q. B. 702.] And the same principle, doubtless, applies to an action grounded on negligence. Here may be noted the class of cases in wliich a partner has been held liable for money or securities received by or entrusted to another partner acting on behalf of the firm, and afterwards misappropriated by the latter. Blair v. Bromley, 5 Hare, 542, 2 Ph. 354 ; Atkinson v. Macrefh, L. E. 2 Eq. 570 ; St. Auhyn v. Smart, L. E. 3 Ch. 646 ; E. of Dundonald v. Masterman, L. E. 7 Eq. 504 ; of. Withington v. Tate, L. E. 4 Ch. 288. (6) Observe, however, the qualification of this doctrine in the case of dangerous occupations (§ 73 post). In the case of damage to a servant by the negligence of another servant engaged in the same common work, it might, perhaps, be sufficient to bring home the negligence to the master personally, if it were shown that the servant whose negligence caused the damage was heedless or negligent by habit, and had been engaged by the master without due inquiry, or maintained by him in the service after notice of his character for heedlessness. But if the servants are engaged . EESPONDBAT SUPEEIOK. 61 § 70. To this eifect [is the decision in the Bartonshill Colliery cases (3 Macq. 266, 300). These cases arose out of a fatal casualty in the shaft of a coal-mine caused by the negligence of the engineman, who omitted to stop the engine when the cage containing workmen arrived at the pit-head. The engineman had an excellent character for carefulness and steadiness. The Lord President, in the trial, directed the jury, that " if they were satisfied on the evidence that the injury was caused by culpable negligence and fault on the part of the engineman in the management of the machinery, the defenders were, at law, answerable." This ruling was found erroneous, on the ground that damage by the negligence of the engine- man, a fellow-servant in a common employment with the pursuer (plaintiff), was one of the risks of the service in which he had voluntarily engaged for hire. § 71. In this case Lord Brougham observed that the liability depended on the question " Whether the negli- gence was that of a fellow-workman engaged with the plaintiff upon the same work," or, to use a word which has been much employed in these arguments, the negligence of a collaborcdeur. The result of subsequent judicial opinion is, however, to show, that the question is not whether the two servants were coTlahoratews or fellow- workmen in any technical sense of the term ; but whether the damage was within the risk incident to the service undertaken for reward. The negligence of a fellow- workman engaged upoa a common work is commonly accounted amongst the risks so undertaken, but is only a subordinate instance, and must be considered in its relation to the more general principle. And upon this point the authorities in the law of England, Scotland, and By a competent foreman, it is not enough to show that the foreman harl notice of the habitual negligence of a boy employed in the works. [Smith V. Howard, 22 L. T. 130 (Ex.); of. Eoey v. DvhUn and Belfast My. Co., IS W. K. 930 (0. P. Ir.)]. A person voluntarily len ling a hand to a work, although not hired, is in no better position than the other workmen or ser- vants engaged in the work. PoHi'r v. Faulkner, 31 L. J, Q. B. 30 (Ex. Ch.). 62 CULPA (simply). America now agree. [Farwell v. Boston Railroad Cor- poration, 4 Metcalf, 49, 3 Macq. 316 ; Morgan v. Vale of Neath By. Co., L. R. 1 Q. B. 149 ; Tunney v. Midland By. Co., L. E. 1 C. P. 291 ; Wilson v. Merry and Cunningham, L. E. 1 H. of L., So., 321 ; Feltham v. England, L. E. 2 Q. B. 33] (a). § 72. That the principle of the cases above cited depends entirely on the contract between the parties is strongly ex- emplified by the case of Warlurton v. Great Western By. Co. [L. R. 2 Ex. 30], where a railway porter engaged in his usual occupation at a station in the service of the N. Company was damaged by the negligence of an engine driver in the service of the W. Company, who had a joint use of the station under an agreement with the N. Com- pany. Here the sufferer recovered compensation from the W. Company for the damage caused by the negligence of the servant of the latter. This was a case where the person in fault was engaged in the ordinary course of his employment under the company whom he served. But where a seaman, one of the crew of a vessel, acting under the immediate orders and control of a master stevedore in the loading of a vessel, by his negligence damaged a workman employed in the same operation, also under the orders of the stevedore, the owners of the vessel were not held liable for the damage. [Murray v. Currie, Nov. 14th, («) I am aware that in the case of Gregory v. HiU [Dec. 14, 1863, reported 8 M'Ph. 282] the Court of SessioQ ia Scotland still assume the colldborateur theory as the criterion. Tliis case was as follows : — A. was building a house. He employed journeymen masons without the interven- tion of a contractor. He contracted with B. for the execution of the joiner work. B. at A.'s request commenced operations before the mason's work was finished. There was evidence that the casualty would not have occurred but for a dangerous mode of work adopted by the masons in consequence of orders from A. pressing the work. The decision of the Court may be easily justified on the ground that the real danger of B.'s situation was, owing to the pressure exerted over the masons by A., greater than the patent risk which B. undertook by commencing the joiner work on tlie house while mason's work was still going on. But that the mere fact of B. being an independent contractor would place liira in any better position than if he had been a day labourer, is a proposition which seems to depend'on no intelligible principle, although supported by some expres- sions at ram TO-iMs of C. J. Cookburn. I Fletcher v. Peto, 3 Fost. & Fin. 368.] EESPONDEAT SUPERIOK — MASTER AND SERVANT. 63 1870 (C.P.)] The view taken was, I presume, that the seaman was, for the time being, not the servant of the owners at all, but of the persons who undertook the loading. The mode of payment seemed to imply this, since the stevedore paid wages to such of the crew as he chose to employ, which was afterwards deducted from the wages paid them by tlie owners. § 73. In cases, therefore, where more than ordinary care is demanded, a person is sometimes held liable for the acts or omissions of others over whom he neither has nor can, on any reasonable hypothesis, be presumed to have any control whatever. In cases demanding ordinary care he is responsible only for the acts of servants or agents over whom he is presumed to exercise some kind of authority ; namely, over servants acting within the course of their employment or agents within the scope of their authority. Where a servant is damaged by the act of another servant, and the damage is such as may be said to arise from a risk incident to the service, there is no remedy whatever. What the master does owe to the servant, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, (a) and to furnish them with adequate materials and resources for the work [per Lord Cairns (Chancellor) in Wilson v. Merry, 1 H. of L. Ap.. Sc, 332] ; and when a master em- ploys a servant in a work of a dangerous character he is bound to take all reasonable precautions for the safety of that workman. [Per Lord Gran worth in Paterson v. Wal- lace, July, 1854, 1 Macq. 751 ; Brydon v. Stewart, H. of L. 13 March, 1855, 2 Macq. 30 ; Pollock v. Oassidy, Court of Session, Feb. 26, 1870, 8 Macph. 615.] In certain works there is a statutory obligation as well. [7 & 8 Vict. c. 15, s. 21 ; Holmes v. Clarke, 7 H. & N. 937] (I). § 74. The question, what is a risk incident to the service, (o) Of. American oases cited by Shearman, § 90. (6) Compare with the above Snugly v. Glasgow and Londonderry Steam Packet Co. (Ex. Ir.), 16 W. E. 483, where averment of the dangerons nature of the operation was held insufficient. 64 CULPA (simply). is not capable of any certain criterion. Perhaps the doc- trine has been stretched to its furthest point when it has been held that a risk arising from the circumstance that the company is in the habit of employing an insufficient number of hands, to the knowledge of the person under- taking the service, is a risk incident to his contract of service. Yet this seems to be, in England, established by authorit/y. \8hi;pp v. E. 0. By., 9 Exch. 223.] It is a still greater extension of a risk incident to the service to hold that the owner of a ship does not warrant to the crew the seaworthiness of the vessel. Yet this also seems to be law (a). {Coueh v. Steel, 3 Ell. & Bl. 402.] j " Eespondeat § 75. It has been observed that the maxim respondeat superior" does g^^gy^oy depends on the presumed control implied by the ease of an relation between the parties. It therefore does not extend contractor* *° *^® *^^®® °^ ^^ independent contractor to whom the execution of a work is committed without any conti-ol or power of direction being reserved on the part of the em- ployer as to the manner of executing the work. In such cases the law makes the contractor alone responsible for damage done by him in the execution of the works (6) [Welfare v. Brighton By. Co., L. E. 4 Q. B. 696], the maxim respondeat superior applying only to the contractor for acts of his servants. But the rule which thus exempts the employer does not apply to cases where the injurious act is the very act which the contractor was employed to do ; or a necessary consequence of the work committed to him. Nor, by parity of reasoning, is the employer exempted if he commits to the contractor the performance of a duty incumbent on himself, and the contractor neglects its fulfilment. If the performance of the duty be omitted, the fact of the person owing it having entrusted it to a person who also neglected it, furnishes no excuse in law. (a) This seems to merit the attention of the Legislature in considering the promised Merchant Sluppmg Code. (6) For American cases, see Shearman, § 82. As to who is an indepen- dent contractor m the sense above indicated, see Sadler v. Henloeh, 4 jfl. & RESPONDEAT SUPBEIOR — COMMETTANT ET PK^POSfe. 65 [Per Williams, J., deliYering the judgment of the Court in Pickard v. Smith, 10 0. B. (N. S.) 480, cited in Mersey Docks Trustees v. Oihbs, L. E. 1 H. of L. 114; see also Gray v. PuUen, 5 B. & S. 970, 34 L. J. (Q. B.) 265.] § 76. The principle last mentioned consists with what has been already stated with regard to situations where more than ordinary care is demanded ; namely, that in such cases a person cannot exonerate himself by showing that he delegated the business to independent and compe- tent contractors. For the duty is in these cases conceived of as a positive duty — to take care, as opposed to the negative duty of not being guilty of heedlessness or rash- ness. And although, as I have shown, the distinction between the different degrees of responsibility does not accurately correspond with any line between positive and negative duties, it may be useful to conceive of the duty where the higher degree of care is demanded as a positive duty, for the special purpose of drawing the inference that the delegation of the duty to another will not exonerate from liability for non-performance. § 77. It seems that the French law, in its application of the maxim respondeat superior, is in harmony with our own. A question depending on this law came recently before the Judicial Committee of our Privy Council in an appeal from Mauritius. By Art. 1384 of the Code Napo- leon, "Les maitres et commettants [sent responsables] du dommage cause par leurs domestiques et proposes dans les fonctions auxquelles ils les ont employes." In their interpretation of the article, the French lawyers appear to have qualified the doctrine so far as regards the commet- tant and prepose by saying that to make the commettant responsible for the negligence of the prepose, the latter must be acting " sous les ordres, sous la direction et la surveillance, du commettant." And in applying this law the Judicial Committee held the commettant responsible where, having employed certain Indians with gangs of 66 CULPA (simply). labourers under them to clear a piece of grouad, the plaintiff's house was burnt by their negligence. Having regard to the nature of the work and the condition of the men employed, the Court thought it unreasonable to infer that the defendant had parted with the power of correcting, as the work went on, the mode in which it was to be per- formed, and of directing what kind of brushwood and other growth was to be removed, and what was to be left standing. It was also observed that these men (the Indians) do not at all answer the description given by Sirey (Codes Annotes, vol. i. p. 665) of " ouvriers d'une profession reconnue et determinee;" they were ordinary labourers, characterised by the Court below as " a set of idle, careless, semi-barbarians." [Serandat v. Saisse, L. R. 1 P. C. Ap. 152, 167.] Proximate and § 78. This seems the place to note the distinction be- remote cause, t^^een the proximate and remote cause of damage. In all cases where ordinary negligence is in question, in order to impute injury to the person whose negli- gence causes the damage, it is necessary that the neg- ligent act should be the immediate or proximate and not a remote cause. I cite first the case of Smith v. London and 8. W. By., L. E. 5 C. P. 98 : a case of the following nature. In an exceptionally dry season workmen employed by a railway company in cutting grass and trimming the hedges bor- dering the railway, placed the trimmings in heaps near the line and allowed them to remain there fourteen days. Fire from a passing i'')gine ignited one of these heaps, and burned the hedge, and was thence carried by a high wind across a stubble field and a public road, and burned the goods of the plaintiff in a cottage about two hundred yards from the railway. It was held by two judges out of three in the Common Pleas (Bovill and Keating, J. J., against Brett, J.) that there was evidence to go to a jury of actionable negligence on the part of the company [Smith V. London and S. W. By. Co., L. E. 5 C. P. 98], and this PROXIMATE AND REMOTE CAUSE. 67 judgment was affirmed by the Exchequer Chamber, Nov. 30, 1870. This was perhaps an extreme case, as the dif- ference of opinion among the judges seems to imply. I here refer also to a case arising out of negligence to protect the public using a road from the effect of a jet of water likely to frighten horses coming along it ; the jet of water being caused by the defendants the New Eiver Company in the exercise of their statutory powers. [EiU v. New Biver Go., Q. B. 18 L. T. (N.S.) 555.] I refer also to a case arising out of the flooding of land owing to the negligent construction of drainage works by a company having made such works under the powers of an Act of Parliament [CoUins V. Middle Level Commissioners, L. E. 4 C. P. 279] ; to the case of a gas company who had laid down a de- fective gas-pipe, causing an escape, and a consequent ex- plosion : held, that the company were liable for the damage done to the shop although the explosion was pai-tly due to the negligence of the gasfitter who was called in and went to the place with a lighted candle [Burrows v. March Gas Co., L. E. 5 Ex. 67] ; and to the case where a ship becoming unmanageable through the negligence of the captain and crew at a point about three-quarters of a mile from a lee-shore, drifted ashore and damaged the plaintiff's sea-wall. In this last case the negligence was held the proximate cause of damage, and therefore the owners of the ship were held liable. [Bailiffs of Bomney Marsh v. Trinity House, L. E. 5 Ex, 208.] § 79. Where by negligence of the defendant the plaintiff is placed in a position of danger, and to escape must hazard an alternative danger, the defendant is liable for the con- sequences of the alternative danger. It is otherwise if the plaintiff has run into danger to escape a mere inconvenience. [Adams v. Lancashire and Yorkshire By. Co., 17 W. E. 885.] Here I must note that where there is neither privity of contract nor proximity of place and time between the neg- ligent act and the damaging consequence, something more F 2 68 CULPA (siMPLTf). than mere negligence, in the ordinary sense of the word, is required to infer injury. There must be intention, or at least that gross negligence which the law equates to inten- tion. Thus where a person in a public-house was injured by the fall of a chandelier, the mere fact that the chande- lier was negligently hung would not infer injury against the person who had undertaken the hanging of it. \ColUs v.;»e?(Zew, L. E. 3C.P. 495.] On this subject I cite also the cases of Langridge v. Levy, 2. M. &W. 519, and4M. & W. 337 (gun for use of plaintiff and his sons) ; Oeorge v. Skivington, L. K. 1 Ex. 1 (hair-wash for use of plaintiff's wife) ; Peacock v» Young, 18 W. E. 134 Q. B., where a person receiving a popular ovation, and imprudently, though unintentionally, inciting others to commit damage, was held not liable. § 80. On this subject I cite two cases arising out of the contract of carriage where special damage, apart from the intrinsic value of the article carried, was claimed, but dis- allowed as too remote. A commercial traveller was held not entitled to recover personal expenses incurred by him while waiting for a box which was delayed in carriage, but of the contents or purpose of which he had given no notice to the company. [Woodger v. Great Western B,y. Co., L.E. 2 C. P. 318.] I cite also the case of the British Columbia Saw-mill V. Nettleshif, which was as follows-: Machinery of a saw-mill was shipped at Glasgow for Yancouver's Island, the shippers having a general knowledge of the nature and purpose of the goods. On arriving at the destination an essential piece of the machinery was found wanting. The shippers were held liable for the cost of replacing the lost articles at Vancouver's Island, with 5 per cent, for the delay, but not for special damage for the loss of profits. Such damage was held too remote a consequence of the negligence, there having been no express contract for a special purpose so as to import a warranty. [British Columbia Saw-mill v. Nettleshija, L. R. 3 C. P. 499 ; Cory v. Thames Ironworks Co., L. E. 3 Q. B. 181.] OONTKIBUTOBY NEGLIGENCE. 6t) § 81. In all cases where ordinary negligence is sufficient Contributory to infer liability, it is a sufficient defence to show that negligence. there was contributory negligence on the part of the plain- tiff; that is to say, to show, that although the negligence of the defendant was a cause, and even the primary cause of the occurrence, yet that the occurrence would not have happened without a certain degree ofblamable negligence on the part of the other. So, notwithstanding the neglect by a master of a statutory duty to have his tackle daily examined for the purposes of safety to his servants, yet a servant who risked his safety on the tackle with notice of its dangerous condition was barred from making the master liable. [Senior y. Ward, 1 Ell. & Ell. 385. See also Cas- well V. Worth, 5 E. & B. 849 ; cf. Doel v. Sheppard, 5 E. & B. 856.] So a person crossing a railway at a level crossing where there is no express statutory duty imposed on the company is bound at least to look before he crosses. [Siubley v. London and N. W. By Co., L, E. 1 Ex. 20.] It seems harsh to apply this doctrine to a case where damage occurs to a young child. Yet this application is made, and this whether the fault is that of the child itself or the negligence of the person under whose imme- diate care it is (a), [Singleton v. Eastern Counties By., 7 '^ ^ /M C. B. (N. S.) 287 : WaiU v. NoHh-Eastern By. Co., 2 B, & E. " 719.] A fortiori, a child is barred from redress when the proximate cause of the damage is its own meddling with a (a) I am aware of the nisi prius dictum of Mr. Baron Channell, that the doctrine of contributory negligence does not apply to an infant of tender years. I Gardner v. Grace, 1 Fost. & Fin. 359.] 1 think the dictum is contrary to the ratio decidendi of the cases cited in the text. Besides, it was unnecessary for the case in point, which was the case of a cliild three and a quarter years old, knocked down in a public street. There was clearly no evidence of negligence on the part of the child. For our law does not follow the rule of certain American State Courts, which impute fault to a child of tender years from the ordinary consequences of its being allowed to be alone in the public streets, and which partly depend on the prevalence of tramways there \_Wright v. Maldon & Melrose By. Co., 4 All. 283, and see cases cited by Shearman, § 48, and commented on in Mangam V. Brooklyn, 88 N. T. 455]. This is probably all that was meant by the learned Baron. The dictv/m in question was merely a suggestion for an arrangement of the case, which was immediately settled. On contributory negligence of a young child, I further refer to an article in the American Law Keview for April, 1870, and to a recent Scotch case, Grant v. Caled. By. Co., Court of Session, December 10, 1870. ^<^' 70 CULPA (simply). thing which would be safe if let alone, or generally when the immediate cause is what may be described as the child gettmg into mischief. \Manga/n, t. Aiterion, L. E. 1 Ex. 239 ; Davidson v. Monklands Canal By. Co. (Court of Session), 17 D. 1038; Lumsdenv. Bussell, 18 D. 468.] The child himself would indeed be, in such cases, liable as a wrongdoer for damage done by his mischievous act. § 82. Where there is a level crossing over a railway by a public footpath (without any carriage-way), it was held a sufficient answer to the action of a person damaged in crossing their line, that if he had looked he might have seen the train coming. [^Skelton v. London and N. W. By. Co., L. K. 2 0. P. 631.] But contributory negligence of a simple or .ordinary degree is no answer to injury caused by such gross neglect as the law equates to inten- tional mischief. This I take to be the principle of the decision mLynch-v.Nwden\l Q.JB. 38], where the plaintiff, a young child, was hurt by playing with a cart which the owner had left unattended in a public place. When a person in charge of a horse and cart leaves it alone in a public place it is obvious that some mischief is the natural consequence. And therefore negligence of this kind may well be equated to intention. The principle is similar to that on which it was held, even before the Acts prohibiting spring guns, &c., that trespass is no answer to the serious injury caused by these instruments placed by the owner on his premises without notice. [Bird v. HoTbrooh, 4 Bing. 628] {a). § 83. ,To make contributory negligence a defence, it must be the proximate cause, or at least such as to consti- tute (conjointly with the other) a proximate cause. If, therefore, a person by some negligence of his own has placed himself in the way of danger by collision with another, so that he himself becomes unable to avert the (a) This was a case whicli arose out of an occurrence previous to the Act 7 & 8 Geo. IV. c. 18, prohibiting these instruments (now replaced by 24 & 25 Vict. c. 100, and 27 & 28 Vict. o. 47). QEATUITOUS DEPOSIT. 71 danger, but yet the other by the use of ordinary care may avert the danger, the latter will be liable if damage ensues [Davies v. Mann, 10 M. & W. 546 (the oft-quoted donkey case) ; Tuff v. Warman, 2 0. B. (N. S.) 740 ; and (in the Exch. Ch.) 5 0. B. (N. S.) 573 (case of a steamer running down a barge which had negligently got in the way and not ported) ; and generally on the duty of a steamer meeting a sailing vessel, owing to the easier command which the engine affords over the former, William Inman v. F. Bech and Others, L. E. 2 P. C. Ap. 25] (a). III. Culpa lata aequiparaia dolo. § 84. I now proceed shortly to illustrate the lowest degree of responsibility, namely, that where more than ordinary negligence is requisite to constitute injury ; and where, therefore, less than the ordinary care of a prudent and reasonable person is demanded. Of this class the two best marked species are the responsibility of the gratui- tous depositee, and the responsibility of the bailor in the case of commodate or loan. § 85. By the Koman lawyers the case of deposit is em- phatically given as an instance in which the bailee is only liable for intentional wrong (dolus), or for that gross neg- ligence (culpa lata) which the law refuses to distinguish from intention. In the celebrated judgment of Holt in Coggs V. Bernard, deposit is instanced as that kind of bail- ment in which, of all others, the least responsibility is de- manded of the bailee. And in the most recent case where the liability of the depositee has been considered in our (a) Compaxe, however, with regard to this duty towards those who get in the way, the case of Singleton v. Eastern Counties By. Co., 7 0. B. (N. S.) 287, where the driver of a railway engine, seeing some children in a dangerous position on a wooden bridge, made no attempt to stop tlie train, but contented himself with turning on the whistle. The Eailway Company were exonerated. I have thought it most consistent with all tlie cases to set down the case of Singleton, § 81 supr., as an instance of contributory negligence on the part of the children. See also Card v. New York and Harlem By. Co., 50 Bar. 39 ; Shearman, § 36, and American cases cited by Shearman, § 40 and § 454 ; see also Smith L. Ca. vol. ii. pp. 264-67;(6th ed.) ; and as to pleading, Doyle v. Einahan, 17 W. R. (Ex. Ir.) 679. 72 CULPA LATA. Courts, the practical result is to exonerate the bailee from a great part of that responsibility which in any case of contract from which he received benefit would certainly have been demanded of him. § 86. I here refer to the case of Oiblin v. MoMullen (L. E. 2 P. 0. Ap. 317), decided by the Judicial Com- mittee of the Privy Council on appeal from the Supreme Court of Victoria. It arose out of the loss of debentures to hearer from a box deposited with the plaintiffs (who were bankers), as gratuitous bailees, and placed by them in their strong room, where a considerable amount of securities and specie of their own as well as valuable property of other customers was kept. The debentures were abstracted by a servant of the bank, who left the ser- vice before the loss was discovered, and who, being a tried servant and bearing an excellent character, had been en- trusted with the keys of both the doors (one within another), by which access to the strong-room was obtained, and who thus enjoyed opportunities of having access to the strong-room alone. After the discovery of the loss, the directors, by way of additional precaution, made regu- lations by which it became necessary that two ofHcers of the bank should go together whenever the strong-room was visited. The Supreme Court of the colony held, in effect, that there was no evidence to go to the jury of such neg- ligence as would render the bank liable for the loss ; and this judgment was affirmed by the Privy Council. Now it is clear that if the transaction had been one from which the bank received valuable consideration, for instance, if ;the securities had been placed with the bank by way of pledge for advances, there would have been evidence of negligence which could not have been withdrawn from the considetation of a jury (a). For the fact that they after- ■ (a) Since wi'lting this I find the distinction given effect to in the case of Re United Service Company, Johnston's claim, Jfov. 21, 1870, Chancery, M. K. I am not, however, aware on wliat facts his Lordship in this case considered the bank to be bailees for reward. In the Weekly Notes re- port it is stated that the owner of the certificates deposited kept his account at the bank, and was charged commission upon the collection of the RESPONSIBILITY OF LENDER. 73 wards thought proper to take an additional precaution would have been a piece of evidence from which a jury might have inferred that the precautions taken in the first instance were not such as reasonable and prudent men would have thought sufficient. § 87. In the judgment delivered by Lord Chelmsford as the judgment of the Court in this case, the expression " gross negligence," as used by Chief Justice Holt and since misapplied by others, is criticised, and in a qua- lified manner defended. But the criticism, as well as the defence of the expression, is misdirected. For it fails to point out that while Holt used the word technically as translating the technical expression culpa lata (aequi- parata dole), his successors applied it not only loosely, but in a manner grounded on misconception, as I have already pointed out. In this case (of Oiblin v. MeMulIen), there- fore, the expression gross negligence might well have been employed in an exact and technical sense to indicate that kind of negligence which the Eoman lawyers were wont to equate to intention. Note also that in this case of Qiblin v. MeMuUen, much weight is given to the circximstance that the bank kept the securities as they kept their own of the like nature. And this circumstance seems to have been thought sufficient to rebut any inference of gross negli- gence which might have been drawn from the mere fact of loss, and to have necessitated some positive evidence of negligence. The weight given to the circumstance of the bank keeping the goods with the same care as their own is in exact accordance with the principles of -the Eoman law above referred to. § 88. Of the responsibility of the lailor in commodate dividends by the bank. Neither of these transactions seem to be dependent on the deposit of the certificates, unless indeed the dividends were payable upon coupons attached to the certificates, and even then the commission might be earned if the coupons, instead of being deposited with the Bank, had been cut off and sent them from time to time as they became due. 74 CULPA LATA, or loan, I will cite a text of the Eoman law, the principle of which doubtless applies to ours : Item qui sciens vasa vitiosa eommodavii, si ibi infusum viuum vel oleum cor- ruptum eflfusum ve est, condemnandus eo nomine est [D. xiii. 6. 18, § 3]. This text was cited by Mr. Justice Coleridge, delivering the judgment of the Court in the case of Blakemore v. Bristol and Exeter By. Go. (8 E. & B. 1035), with the following comment : — " This is so consonant to reason and justice that it cannot but be part of our law. Would it not be monstrous to hold that, if the owner of a horse, knowing it to be vicious and un- manageable, should lend it to one who is ignorant of its bad qualities and conceal them from him, and the rider, using ordinary care and skill, is thrown from it and injured, he should not be responsible ? The principle laid down in Coffgis T. Bernard, and followed out by Lord Eenyon and BuUer, J., and by Lord Tenterden in the nisi prius cases cited in the note [Smith's Leading Cases, vol. i. p. 162, 4th ed.], that a gratuitous agent or bailee may be respon- sible for gross negligence or great want of skill, gets rid of the objection that might be urged from want of con- sideration to the lender. By the necessarily implied purpose of the loan, a duty is contracted towards the borrower not to conceal from him those defects known to the lender which may make the loan perilous or unprofit- able to him." [See also McCarthy v, Younff, 6 H. & N. 329 ; 30 L. J. Exch. 227, Sm. L. Ca. 6th ed. pp. 225, 226.] It is a fortiori clear that when a person knowingly gives another dangerous goods to carry for a reward, he is bound to give notice of their dangerous character to the person employed to carry them, [Farranf v, Barnes, Jan. 23, 1862, 11 0. B. (N. S.) 553.] In such a case negligence (in .the ordi- dinary sense) on the part of the person giving the goods to be carried is certainly sufScient to infer liability ; and there is good authority for saying that the person sending goods for carriage without notice that they are of a dan- gerous character warrants that they are not so. [^Brass v. Maitland, 6 Ell. & Bl. 470 (goods shipped on board a general GBATUITOUS DEDICATION OF PUBLIC WAY. 75 ship). See also Penion v. Murdoch, C. P. 18 W. E. 382 (glandered horse).] § 89. In the same category with the above may be mentioned the case of a person gratuitously dedicating a way to the public. The public adopting a way dedicated to its use must take it as it is. l^Boblins y. Jones, 15 C. B. (N. S.) 221, 243 ; Fisher v. Prowse, 2 Best & Sm. 770.] At the same time it is scarcely to be supposed that the dedicator would be justified in omittiag to warn the public of a concealed danger in the way, known to himself. INDEX. Abanbonino case without reasonable notice to the client, is a breach of duty in attorney, § 47, p. 44 Abbott, O.J.. his remarks on the liability of attorneys for negligence, § 47, p. 45 Aesoldte Ddtt to keep premises in safe repair, § 14, p. 15 action does not lie for every breach of, § 14, n., p. 15 Abstsact, liability of purchaser's solicitor laying before counsel part only of, § 45, p. 42 Accident on railway caused by breaking of tire of wheel [Bedhead v. Midland By. 00.2, § 39, p. 36 Lord Campbell's Act for compensating families of persons killed by, § 39, «., p. 36 in riding, driving, &o., gives rise to questions as to ordinary negligence, § 57, p. 51 in driving a guest, kingbolt broken not positive evidence of negligence, § 59, p. 53 at least presumption rebutted by proof that carriage was periodically examined, ibid. in shaft of a coal mine [BartonsMU CoUiery Cases], § 70, p. 61 Accommodation Woeks, failure to main- tain, is ground for an action, § 17, n., p. 18 Accommodations at railway station, what state of, is evidence of negligence against the company, § 41, p. 40 Accord and Satisfaction in lifetime of deceased a good plea to an action under Lord Campbell's Act, § 39, n., p. 36 Account of consignee, when goods are sent on, he is the person to sue for loss, § 36, p. 32 Aocukact of records of title in Scotland relied on by purchasers for value, § 22, p. 22 Act (or omission) itself not properly de- scribed by the terra " negligence," § 1, p. 2 Act — continued. but negligence a ground for imputing guilt to the author of the act or omission, § 1, p. 3 Act of God (or Queen's enemies) (see Casds), excuses sheriff for an escape, § 20, p. 21 only can excuse for escape of dan- gerous thing harboured on land, § 24, p. 23 ; § 26, p. 25 (or Queen's enemies), excuses common carrier, § 34, p. 31 Action arising out of tort commonly dis- tinguished from one arising out of con- tract, § 12, p. 12 every, has its legal ground in wrong, § 12, p. 13 for damage does not lie in every case of nuisance, § 14, ii., p. 15 does not lie against local board of health for damage owing to disrepair of parish road, § 14, n., p. 16 corporation liable to, on covenant in- corporated in statute authorizing their undertaking, § 17, »., p. 18 does not lie against Postmaster-Gene- ral for negligence of inferior servants, § 23, p. 22 duty of attorney in conduct of, § 46, § 47, p. 43-45 by client against solicitor for negli- gence requires proof of negligence in fact, or circumstances &om which negli- gence is implied by necessary legal infer- • ence, § 51, p. 46 for negligence, whereby the fund for distiibution among creditors is dimin- ished, may be maintained by assignee or trustee in bankruptcy, or by liquidator of company, § 55, p. 49 Actionable Nbqligenoe not constituted by failure to observe a self-imposed pre- caution, § 30, p. 27 not necessary for the Court of Chan- cery to disallow costs, § 53, p, 47 78 INDEX. Addeess, tender of goods at, of consignee, at reasonable hour, exonerates common carrier from liability as such, § 35, p. 32 Atmintsteation SniTrenderednecessai'yby wilful neglect of duty by trustees, they must pay their costs, § 55, n., p. 51 Admiealty Ccuet exercises jurisdiction in case of damage done by a ship to sub- marine telegraph cable, § 56, »., p. 51 Agent, consignor is deemed, for consignee to retain the carrier, when goods are sent on account and at risk of consignee, § 36, p. 32 furwartling company in case of through traffic is, for the company who have made the contract of carriage, § 36, p. 32; § 42, p. 40 action against, for negligence may be mnintained by assignee in bankruptcy of principal, if fund available for cre- ditors has been diminished by the negli- gence, § 55, p. 49 for purchase of public-house held liable for negligence, although employer, by his advice, had himself examined the business [Smith v. Buxton],^ 55,n., p. 50 attorney liable for default of, § 50, p. 45 • acting within the scope of his autho- rity, renders principal liable for his neg- ligence, § 61, 62, p. 55 on account of the pre- sumed control by principal over his acts, § 61, p. 55 ; § 73, p. 63 in case of damage by, acting within the scope of his authority, the person damaged has the option of suing the principal or agent, § 62, »., p. 55 but cannot sue an intermediate agent, ibid. AiE-BCBBLE in welding of tire of a wheel causing railway accident IBedhead v. Midland By. Co.l § 39, p. 36 Aldeeson, B., his definition of negligence, § 1, P- 2 Alteenative Dakgeb incurred to escape danger arising out of negligence, does not imply contributory negligence, § 79, p. 67 America, telegraph companies in, deemed cummon carriers of messages, § 36, n., p. 33 Ameeioan rule as to trespass by tame animals more severe than ours, § 27, m., p. 25 as to negligence of fellow-servant being regarded as a risk incident to the contract of service, the same as that in England, §71, p. 62 Ameeioan — continued, cases as to negligence of young chil- dren or the persons under whose care they are, § 81, n., p. 69 Anohoe, negligent damage to submaiine cable by, § 56, p. 51 Animal, liability of person keeping dan- gerous, § 25, p. 24 ; § 27, p. 25 ' tame, § 27, n., p. 25 Appkoval, goods sent for, consignor is the person to sue in case of loss, § 36, p. 32 Aqthlia, Lex (see Lex Aquilia) Assignee in bankruptcy may maintain action for negligence whereby fund avail- able to creditors is diminished, § 55, p. 49 AssTTHEMENT, the name of remedy in Scotch"law, which suggested Lord Camp- bell's Act for compensating the families of persons killed by accidents, § 39, ■«., p. 36 Attempts to bite, evidence of dog's ferocity and of master's scienter if brought to his knowledge, § 27, »., p. 26 Attendance of witnesses at. trial, duty of attorney to see to, § 46, p. 43; § 47, p. 44 Attoenet and Client (see Solicitoe and Client), § 43-55, p. 41-50 Austin, his analysis of terms " negligence," &e., § 1, p. 2, 3 AusteAlia [case of Mqffatt v. Batemaii], § 59, 60, p. 53, 54 , colony of Victoria, case of deposit of valuables with bankers [Giblin v. McMul- knl § 36, p. 72 AnTHOEiTT (see Scope oe Authoeitt) Awaed in pursuance of statute may con- stitute binding covenant [LocTchart v. Irish, (fee., Co.'], § 17, ■«., p. 18 Bailee, involuntary, carrier becomes, by refusal of goods at address of consignee, and as such liable for ordinary negligence only, § 35, p. 32 gratuitous, case of bankers with whom securities are deposited for safe keeping IGiblin v. McMulkn'], § 86, p. 72 Bailment, six kinds of, enumerated by Holt, C.J., § 10, p. 10 in delivery of a thing involving a duty of keeping it, § 10, p. 1 1 Sir W. Jones' essay on law of, ibid. of thing lent, § 13, p. 14 of goods received by common carriers, § 34, 35, p. 30-32 of gratuitous deposit, § 85-87, p. 71-73 INDEX. 79 Bailob, in commodate responsible only for culpa lata, § 81, p. 71 ; § 88, p. 73, 74 Bank of mud at entrance of dock, ship grounding on [Mersey Docks, &c., t. Giftbs], § 17, p. 19 Bankeb as gratuitous bailee of valuable securities deposited with him for safe keeping [GaZmv.JlfcJlMien], § 86, p. 72 Banking Company, action by liquidator of, against directors for negligence, § 55, p. 49 Banksuptct, assignee or trustee in, may maintain action for negligence whereby fund for distribution among creditors has been diminished, § 55, p. 49 Baege run down by steamer— the owners of the latter guilty of negligence if the steamer could have averted the collision by ordinary care, § 83, p. 71 Babeistbr, irresponsibility of, said to be because his fee is an honorarium, § 21, »., p. 22 [This is of course no reason. For, as I have shown in Mandate, of which genus the retainer of counsel is a, species, it matters not that the service of skill is undertaken gratuitously. The fact is, that the privilege of a barrister is altogether unique (eigen- thilmlich), and is duo to the pecu.. liar history and traditions of the profession.] Benefit of the transaction determines the degree of diligence required, § 3, p, 4 except in mandate, § 8, p. 8 " gross negligence" improperly used in case of a contract for mutual, § 11, p. 11 of borrower, involves liability for slight negligence, § 13, p. 15 of both parties is the criterion of invi- tation, § 33, pp. 29, 30 . contemplated in contract of common carrier, § 34, p. 30 generally implies liability for ordinary negligence only, § 43, p. 41 therefore ordinary negligence only is the criterion in case of deposit for hire or reward. Benefit op Bailor, deposit is for, and therefore implies a slighter responsibility than that for ordinary negligence, § 85, P-71 ... Bill of Exchange, notary s function m the protest of, § 21, p. 21 (French) duty of attorney suing upon, to ascertain whether it has been in- dorsed according to French law [Long v. Oreil § 47, p. 44 Bill op Lading contains the conditions qualifying the responsibility of the ship- owner, which, except so far as qualified by that document, is that of a common carrier, § 37, p. 34 " Not responsible for leakage, &c." ibid, [eases cited at foot of page] Board of Health (see Local Boabd.) Boeroweb in commodate bound ia exact diligence, § 4, p. 5 ; § 6, p. 7 but only in proper commodate, i.e., gratuitous loan, § 4, p. 6 liable for everything short of casus, § 13, p. 15 Beaoton, Koman law embodied in his work cited by Holt in Coggs v. Bernard, § 10, p. 10 Breach of Trust amounting in equity to fraud [Turquand v. Marshall], § 55, p. 50 Breaking of the tire of a wheel, accident caused by [Bedhead v. Midland By. Co.'], § 39, 40, p. 36-38 Breaking down of railway carriage is jorimA facie evidence of negligence against the company, § 41, p. 39 Bbick falling from railway bridge [Kearney V. L. B. & S. a By. Co.], § 15, p. 16 Bridge of railway over public road, action against, for negligence in not repairing [Kearney v. L. B. & 8. C. By. CoX § 15, p. 16 over railway near level crossing, obstructing the view, seems to require some extra precaution in trains approach- ing the place, § 31, p. 28 case of children sitting on, by railway, as train was coming up [Singleton v. G. E. By. Co.], § 83 n., p. 71 Brief, neglect of attorney to deliver, § 47, p. 44 Brushwood, negligence in burning [S^- randat v. Saissi], § 77, p. 66 Buildings, when is there a right to sup- port for, § 17 n., p. 18 Burden of Proof (see Onus ; Evidence) Campbell's (Lord) Act (9 & 10 Vict. c. 93), § 39, a., p. 36 Caeb (see Dub Oabb ; Ebasonablb Care ; Obdinabt Oabb). on the part of the manufacturer of a carriage, guaranteed by a railway com- pany as carriers of passengers, § 39, p. 37 in preparation of case for trial, liabi- lity of attorney for want of, § 46, p. 43 ; § 47, p. 44 Cargo damaged by ship grounding at 80 INDEX. Oakgo — continued. entrance of dock {_Mersey Docks, &c. v. Gibbsl § 17, p. 19 Oaebiage, Eailway (see Eailwat Oab- KIAQE) ofiter of seat in, implies liability for ordinary negligence only, § 59, p. S3 Cabeiaqb op Goods by land as well as sea, the principle of responsibility deduced from the Praetor's edict, " Nautse cau- pones, &o.", § 38, p. 35 by sea, mode of delivery to exonerate from liability, defined by statute, § 34, p. 31 in contract for, warranty of sea- worthiness of vessel is implied, § 37, p. 35 Caekiagb-eoad, public, crossed by railway at a level, § 29, p. 26 ; ■ § 31, p. 28 Caeeiee (see Common Caeeieb) Caeeiee op Passenqees by rapid convey- ance warrants reasonable or due care in the construction of the carriage, &c., § 13, n., p. U; § 39, p. 36, 37; § 40, p. 38 his liability, § 39, 40, p. 36-38 not an insurer, § 39, p. 37 ; § 42, p. 41 for hii's distinguished from person giving seat in his carriage to anotlier, § 59, p. 53 Caeman, when in course of employment [Storey v. AsTOon'], § 65, p. 57; IMitchell V. GrasswelUr'], § 66, p. 58 Cakt with Horse negligently left by work- man intrusted with them at a place a mile out of the line of his work [_What- man v. Pearson'], § 64, p. 56 left unattended in a public place is gross negligence, affording presumption of intentional mischief, § 82, p. 70 Casual Inquiry, attorney not responsible for answer to, to person not his client, § 54, p. 49 Casus (or accident) used by the Koman lawyers to negative culpa or dolus, § 2, p. 3 borrower not liable for, § 4, p. 5, 6 ; § 13, p. 15 excused under Ux Aquilia, § 4, p. 6 Negotiorum gestor sometimes liable for, § 8, p. 9 exonerates (perhaps), for escape of dangerous thing brought on premises, § 24, § 26, p. 23, 25 the negation of culpa levissima, § 26, p. 24 accident caused by flaw in tire of a wheel which no care or foresight could prevent IBedhead v. Midland By. Co.], § 39, p. 36 Cattle straying on highway adjoining a railroad [Manchester, &c., By. Co. v. Wattis'l, § 17, »., p. 18 and sheep protected by statute from worry by dogs, § 27, p. 25 carriage of, by railway, stipulation . against damage by negligence, unreason- able, § 37, p. 34 Cause, proximate and remote (see Pboxi- MATE Cause, Remote Cause) Chancery, Court of, sometimes disallows costs on grounds slighter than actionable negligence, § 53, p. 47 e.g., on ground of failure in rigid adherence to duty by inserting power of revocation in a voluntary deed, or insist- ing on a party, in a case where undue influence might be suspected, being separately advised, ibid. will not aUow solicitor to take advan- tage of his own negligence, ibid. in what cases of negligence has Court of, jurisdiction, § 54, p. 47 it seems only for such crassa negligentia as Equity construes to be fraud, § 64, p. 47-49 attempt to enforce liability in, for mere negligence, a failure [Overend, Gurney, & Vo. v. Gurney, etc.], § 54, p. 48 : § 55, p. 49 jurisdiction by petition or motion to recover costs, § 54, p. 48 Chandelieb in public-house, negligently hung ; person who undertook the hang- ing of it not responsible to stranger damaged by it [Oollis v. Selden'], § 79, p. 68 Chaetefpaety including demise of ship transfers the responsibility for goods carried. § 37, n., p. 35 Child (young), negligence of, considered, § 81 and note, p. 69 negligence of person under whose care it is, ibid. mere fact of, being left alone in public street not, in England, evidence of negligence, § 81, «., p. 69 otherwise, it seems, in America, ibid. getting into mischief. § 81, p. 70 playing with cart left unattended in public place not contributory negligence [Lynch v. IS.'urden'], § 82, p. 70 in dangerous position on railway bridge as train is coming up [Singleton V. G. E. By. Co.], § 78, n., p. 71 Civilians, modern, their rules conrerning the degrees of liability, § 82, p. 70 Classical Jurists, their criteria for im- puting liability, § 3, p. 4 INDEX. 81 Classical Jubists — conliimed. reasons for adhering to their lan- guage, § 7, p. 8 Clekk, attorney liable for de&iilt of, § 50, p. 46 telegraph, solely responsible for his mistake in message, § 36, »., p. 33 Cltent (see Solicitok) Coach (see Mail-coach) CoAL-MraE, accident in ascending shaft of [Bartonshill Colliery Cases], § 70, p. 61 shaft of, in unsafe state [^Brydon v. Stewart], § 73, p. 63 COLLABORATEUR (see FeLLOW - ■WORKMAN ; ElSK INCIDENT TO SERVICE) used by Lord Brougham in Bartons- hill Colliery Cases, § 71, p. 61 but now repudiated as a technical term [Wilson v. Merry], ibid. though not yet by Court of Session, § 71, n., p. 62 Collision, train causing, presvimed to be under control of company on whose line it is, § 42, n., p. 41 between ships, gives rise to questions as to ordinary negligence, § 57, p. 51 by negligence, master of ship acting within scope of authority makes his owners liable for, § 62, p. 56 although deviating to perform salvage services, § 68, p. 60 contributory negligence remotely causing, is no defence if defendant, by immediate use of ordinary care, might have avoided it, and plaintiff could not, § 83, p. 70. 71 Commercial Traveller not entitled to claim special damage for delay of box unless he has given notice of the con- tents, and their purpose, § 80, p. 68 CoMMETTANT BT Prepose, French law regarding liability of the former [S&an- dat V. Suisse], § 77, p. 65 Commission (see Mandate) and omission distinguished, § 58, p. 52 ordinary negligence commonly inferred from the former, ibid. ; of. § 76, p. 65 charged by bankers on collection of dividends a reason for inferring that they ai-e liable for negligence in losing securities intrusttd to them, § 86, n., p. 72 Commissioners having statutory duty to maintain sluice held liable to proprietor of land damaged [Coe v. Wise], § 17, n., p. 18 CoMMODATCM, or gratuitous loan — diligen- CoMMODATUM — Continued. iia qualem diligentissimus paterfamilias, &o., § 4. p. 5 proper, is gratuitous, § 6, p. 8 is a contract re in Eoman law, §9, «., p. 9 typical instance of a contract in- volving liability in case of culpa Uvis- sima, or slight negligence, § 13, p. 14 respiinsibility of the bailor is only for culpa lata, § 84, p. 67; § 88, p. 73, 74 Common Carrier, his liability an excep- tional case, § 11, p. 12 nature of his contract, § 34, p. 30 exonerated only by act of God or Queen's enemies, ibid. liability as such does not terminate until delivery of the goods to consignee, or lapse of reasonable time after notice to him of their arrival, ibid. if goods refused at address, notice to be given to consignor, and carrier only liable as involuntary bailee. for ordinary negligence, § 35, p. 32 must be sued by the person at whose risk the goods are, § 36, p. 32 law relating to, at one time evaded by railway companies giving notice of conditions, § 37, p. 33 his responsibility said to arise from the custom of the realm, § 38, p. 35 of goods said to be an insurer, § 39, p. 37; §-40, p. 38 by which is meant only that he warrants safe carriage (see Insurance) not liable for special damage arising from delay of goods without notice of the purpose for which they are required, § 80, p. 68 Common Interest is the criterion of invi- tation as distinguished from licence, § 33, p. 29, 30 Company, where assets of, have been diminished by negligence of directors,! liquidator may sue them, § 55, p. 49 cannot be made answerable for act of servant which is ultra vires of the com- pany themselves, § 66, n., p. 59 Compromise, attorney may enter into, bond fide, and for benefit of client, § 49, p. 45 but not in defiance of client's express prohibition, ibid. Concealed Dangbk (see Trap), § 32, p. 39 ; § 58, p. 52 ; § 89, p. 75 Condition in contract for carriage of goods, what is a reasonable, § 37, p. 33, 34 stipulating exemption for loss on rail- Way not worked by the contracting com- pany, not struck at by RaihVay and Canal Traffic Act, § 37, p. 34 G 82 INDEX. CosuTJCT of cause, duty of attorney or soli- citor in, § 46, 47, p. 43-45 Confidence induced by undertaking gra- tuitous service is a legal consideration for the performance, § 10, p. 10 Consensual Contracts in Eonaan law, § 9, n., p. 9 Considerable Neqliqenob sometimes meant when the words " gross negli- gence" are used, § 11, p. 12 ■ is a more appropriate terra than gross negligence to express the kind of negli- gence for which an attorney is liable, § 47, p. 45 not sufficient ground for suit in Chancery, § 54, p. 48 CoNSiDEKATioN presumed from deed under sea), § 9, p. 10 valuable a, criterion of the negligence inferring liability, § 4, p. 5 in contract of hire, includes under- taking the risks incident to the service, § 69, p. to ii valuable, in case of securities de- posited with bank, is reason for inferring that they are liable for ordinary negli- gence, § 86 and § 86, u., p. 72 Consignee, delivery of goods, or lapse of reasonable time after notice to, can alone terminate the responsibility of common carrier, § 34, p. 31 ; § 85. p. 32 is the party to sue for failure in de- ■ livery of goods, if the goods, as between him and the consignor, are at his risk, § 36, p. 32. CoNSiGNOE, notice usually given to, when goods are refused at the address of the consignee, § 35, p. 32 is tlie person to sue for loss, if goods are at his risk, § 36, p. 32 Construction and maintenance of public works, duty of, § 17, p. 17, &o. Constructive Fraud of persons in a posi- tion of confidence, § 54, p. 48 case of Purquand v. Marshall is a case of constructive fraud, or culpa lata aeqniparata dolo, § 55, p. 50. CoNTKAOT for sole benefit of obligor " re- cipit dolum tantum," § 3, 4, p. 4 for mutual benefit, " recipit dolum et culpam," § 3, 4, p. 4, 5 conception of, in Eoman and English law, § 9, p. 9 obligations arising out of, how classi- fied by Roman lawyers, ibid. ordinary oases of, require ordinary care, § 13, p. 15 under English law, viewed as promise for a consideration, § 9, p. 10 Contra ot — continued. for mutual benefit, term "gross negli- gence " improperly imported into, § 11, p. 11 alone contemplated by Koman lawyers in laying down rules as to culpa, &c., § 12, p. 12 and tort conceived by English lawyers as forming separate classes of actions, § 12, p. 12 not logically opposed to delict, § 12, p. 13 and tort, the distinction between, disregarded for the purposes of this essay, § 12, p. 13 and tort, the distinction has some im- portance in relation to procedure, § 12, n., p. 13 of insurance must be express, § 13, »., p. 14. to carry passengers {see Carbuer of Passengers) , risk incident to (see EiSK incident TO Contract), excludes the responsibility implied by invitation, § 32, p: 2 ; § 69- 77, pp. 60-66 to carry for hire (see Common Carrier), § 34, p. 30 , for carriage, where goods under, are transferred from the contracting company to another, there is no privity between the consignor and tlie second company [Bristol and Exeter Railway Company v. Collins'], § 36, n., p. 33 to transmit message by telegraph, infers no privity between telegraph company and receiver of raeaaage [^Play- ford V. V. K. Tel. Co:], ibid. in America, the company is said to be a common carrier of messages, ibid. for carriage, railway company making, is liable for oaa'rying it out, although the transit goes partly over another line, § 36, p. 32 special, for carriage of goods controlled by Eailway and Canal Traffic Act, § 37, p. 33 special, to carry goods by sea, in order to exempt from liability for negligence must expressly say so, § 37, p. 34 to carry passengers considered, § 39, p. 35 to establish this contract not always necessary to have a ticket, § 39, »., p. 35 by railway company to carry over the line of another company, renders the first company liable for tlie negligence of the second, § 42, p. 40 INDEX. 83 CoNTEACT — continued coutemplating mutual ndvantage, where no warranty express or implied, requires ordinary o.ire, § 43, p. 41 of employment for hire, negligence of fellow-workman is deemed a risk incident to, and therefore no ground for action against tlie master, § 69, p. 60 this principle depends on the contract of service, and not on the fact of common work [IT'n rfturton v. G. W. Ey.l, § 72, p. 62 although person voluntarily associating himself in wo'k is in no better poiiition than tl-e others, § 69, n., p. 61 of Ciirriage, where special damage claimed under, held too remote [Woodger V. G. W. liy. Co.l § 80, p. 68 [British Columbia Saw-mill, &<:'], ibid. Co^sTRACTOK to provide mail con oli does not warrant the coach to driver employed by contractor for horsing the coach, § 12, n., p. 14 negligence of, imputed to Mersey Docks trustees, § 17, p. 20 liability for omission of, where dan- gerous thing has been harboured on land IFletcher v. RyUnds], § 24, p. 23 shipowners as commoij carriers may be liable for negligence of, § 37, p. 35 railway company, as carriers of pas- sengers, may be liable for negligence of, § 41, p. 39 opening a highway under statutory power, and afterwards properly rein- stating, not liable for subsequent subsi- dence_ of materials {_Hyams v. Webster], § 55, n., p. 50 engaged on unfinished building, not liable to custom-house officer damaged in passing over it \_Casfle v. FarJser'], ibid. held liable for workman entrusted with horse and cart, with which he went home to dinner, contrary to orders, a mjle out of the line of his work, and negligently left cart in the street, whereby damage ensued {Whatman v. Pearson], § 64, p. 56 is liable for servant lent to him to be under his control, § 62, n., p. 56 working at joiner work upon unfin- ished house, damaged by negligence of mason's workman, can he sue the owner of the house, except on the ground of personal negligence? § 71, n., p. 62 who is an independent ? § 75, n., p. 64 — -— maxim respondeat superior docs not apply to person employing, § 75, p. 64 CoNTnACTon — continued. but still applies so as to make the contractor responsible for those employed by him, ibid. but employer responsible, if the damaging act is the very act the con- tractor was employed to do, ibid. ^ or a necessary consequence of it, ibid. employment of, by person owing a duty, does not exonerate liim if the con- tractor neglect it too, ibid. CONTEIBUTOKY NEGLIGENCE, qumre, will it exonerate a person failing to restrnin a dangerous thing which he harbours? § 26, p. 25 considered, § 81-83, p. 69-71 of servant, with notice of tackle being in dangerous condition, § 81, p. 69 application of duclrine to aise of young child, § 81, and «., p. 69 ; § 83, n. p. 71 person going along footpath which crosses railway at a level 8 81, 82, p. 69, 70 of ordinary degree, no answer to inten- tional wrong or gross negligence from which the law presumes intention, S 82, p. 70 — — e g. leaving horse anil cart unattended in public place, ibid, setting spring-gun?, &c., ibid. to be a defence, must be proximate cause, § 83, p. 70 not a defence if iit last the defendant, by use of ordinary care, couhl have avoided accident and the phdutiff could not ; e.g. driving over donkey, steamer running down sailing-vessel or barge, § 83, p. 71 ■ to be a good defence must be proxi- mate cause of the damage, § 83, p. 70 Control of property, liability of a person parting with, to the loss of another person interested, § 55, n., p. 50 presumed, over acts, the basis of the liability of master for servant, principal for agent, § 61, p. 55 ; § 73, p. 63 so if servant is lent to a con- tractor, to be under his control, the con- tractor is responsible for him and not the lender, § 62, n., p. 56 in cases where more than ordinary care is demanded, person may be held liable for those over whom he has no control, § 73, p. 63 of operations, presumption that it was not parted with, where gangs of Indians were employed to burn brushw»od [Serandat v. Saiss^], § 77, p. ()6 G 2 84 INDEX. CoRPOBATioN for on undertaking to be used by tbe public paying tolls, liable in exact diligence, § 17-19, p. 17-20 [Case of Mersey Docks, &c. v. Oihhs'], § 17-18, p. 17-20 knowledge may be imputed to, of facts known to their servants whose duty it was to inform them, § 62, »., p. 56 Costs abortively incurred through negli- gence of solicitor, his liability for [Polls V. BuUmi], § 45, p. 42 positive evidence of negligence not required on the part of client resisting payment of, § 52, p. 46 what circiunstances will, in a question with solicitor, form ground for resisting payment of, § 52, p. 46, 47 . causing suit to be lost through negligence, § 52, p. 46 previous steps in suit becoming useless by negligence, ihid. work useless, whether through wilful error, or inadvertence, or inexpe- rience, Hid. work partially useless, cross- action requisite, § 52, p. 47 sometimes disallowed by Court of Chancery on grounds slighter than actionable negligence, § 53, p. 47 recovered against solicitor whose neg- ligence has caused them, by summary application to the Court of Chancery, § 54, p. 48 of administratiun suit rendered ne- cessary by wilful neglect of duty by trustees must be paid by them, § 55, »., p. 51 Counsel (see Baebistbe) Counsel, solicitor for purchaser laying before, part only of abstract received from vendor is guilty of neglect, § 45, p. 42 duty of attorney to retain and in- struct for trial, § 47, p. 44 opinion of, does not exonerate attorney on points with which he is presumed to be familiar, § 48, p. 45 must be obtained on a case tond fide and fairly stated, ibid. advice of, does not exonerate attorney entering into a compromise against client's express prohibition, § 49, p. 45 CouBBE OP Employment, master liable for servant for acts done in, § 62, p. 53 to define what is, necessary to con- sider the decided cases, § 63, p. 56 Whatman v. Pearson (C. P.), going with cart and horse home to dinner against orders, § 64, p. 56 Course op Employment — continued. Storey v. Ashlon (Q. B.), new and independent journey, § 65, p. 57 MitclieU V. Crassweller, observations of Maule, J., § 6K, p. 58 Dicta of Parke, B., in Joel v. Mori- son, d€tour to call on a friend, frolic of his own, § 67, p. 59, fiO servant of railway company doing what is ultra vires of the company, does not make them responsible, § 66, »., p. 59 principle of master's liability is his presumed control over the servant's acts, §01, p. 55; §73, p. 63 Court op Chancery (see Chancery). Covenant incorporated in statute autho- rizing a public undertaking, § 17, n., p. 18 unusual, solicitor liable for allowing his client to execute, without explana- tion, § 45, p. 42 Ceassa Negugentta (see Culpa lata; Gross Negligence) Crassa Negligentia, use of the term recti- fied, § 11, p. 11 use of the term as applied to negli- gence of attorneys explained, § 47, p. 44, 45 in the sense of negligence which Equity construes to be fraud, will form ground for bill in Chancery, § 54, p. 48 Creditors, action to recover loss by negli- gence may be maintained for benefit of, by assignee and trustee in bankruptcy, or by liquidators, § 55, p. 49 Crossing (see Level Crossing) Culpa, used by the Koman lawyers in same sense as negligence used by ours, § 2, p. 3 dibtinguished from dolus and casus, ibid. where transaction for mutual benefit, each liable for, § 3, p. 4 el diligentia, where for benefit of obligee, ibid, recipient of commodatum liable for, if he unnecessarily incur risk, § 4, p. 6 mandatary responsible for, § 10, p. 10 Culpa lata (see Crasba Negligentia; Gross Negligence) Culpa lata distinguished from ordinary negligence, § 1, p. 2 is great or gross negligence, § 2, p. 3 by convenient fiction construed as do?«s, §5, p. 6; §6, p. 7 sometimes loosely used by English lawyers, § 11, p. 11 dolus ttel, the lowest species of obliga- tion for indemnity INDEX. 85 Culpa hkTX— continued, use of term as applied to negligence of attorneys, explained, § 47, p. 44 case of Turquand v. Marshall (breach of trust by dii'ectois of company). § 55, p. 50 contributory negligence (of ordinary kind), no defence to action grounded on, § 82, 83, p. 70, 71 this head of subject considered, § 84- 89, p. 71-75 Moffatt V. Bateman (case ■where a person gives seat in carriage to another going on common errand), not a case of, in the strict sense of the term, § 59, p. 53 ; § 60, p. 54 rendeis liable in case of thing know- ingly lent with dangerous defect, § 60, p. 54, 55 ; § 88, p. 74 if not intention, must be present in order that injury may be inferred apart from privity of contract or proximity of time and place, § 79, p. 68 OiLPA LEVIS, or OiLPA (simple) (see Obdi- NABY Negligence), opposed by way of comparison to culpa lata, § 2, p, 3, 4 correlates to a middle sort of dili- gence, § 6, p. 7 this head of subject considered, § 43- 83, p. 41-71 Culpa levissima (see Exact Diligence) distinguished from ordinary negligence, § 1, p. 2 correlates to dUigentia or exaeta dili- gmtia, § 2, p. 4 ; § 6, p. 7 liability inferred by, under lex Agui- iia, §2, M., p. 4; § 4, p. 6 cases in English law considered, § 13, p. 14, and following particular grounds — (a) Commwdatum or loan, § 13, p. 14 (;8) Occupier's obligation in question with stranger to ktep tenement in safe repair, § 14, p. 15 (7) Trustees of public undertakings on which tolls are levied, § 7, p. 17 (5) Public officers having duties for which they are entitled to de- mand fees, § 20, p. 20 ( f) Harbouring dangerous thing, § 24, p. 23 (f) Occupier's obligation to persons coming on ground by invitation, § 32, p. 28 (7)) Comnjon carriers, § 34, p. 30 (e) Carriers of passengers by rapid means of transit, § 39, p. 35 (i) Letting seats in a race-stand. § 41, p. 39 Culpa i,TS,yisswK^cnntinued. as a ground of liability not distin- guishable from implied contract of war- ranty, § 13, «., p. 14 boih are fictions, ibid. applies to case of liability to strangers for damage caused by dangerous thing brought on premises, § 26, p. 24 term " gross negligence " sometimes loosely used as contrasted witli, § 59, p. 53 in cases where, applies, employment of a competent contraetor is not enough to exonerate, § 76, p. 65 Curve in a line of railway near a level crossing [BiHice v. London and Brighton By. Co], §31. p. 28 Custom of the realm said to regulate the duty of a comm(.n carrier, § 34, p. 30 ; § 38, p. 35 Custom-house Officeh, sugar-bags falling on, from lift [Scott v. Liverpool Dock Company], § 16, p. 17 dflmafi;ed in passing over unfinished building— no rediess [Castle v. Barher'], § 55, «., p. 50 Damages, mi asure of, under Lord Camp- bell's Act, based on calculation of pecu- niary loss (see Measure of Damages), § 39, 11,., p. 36 Damnum absq' e Injuria said to result in certain oases of damage to a third party arising out of a contract, § 12, n., p. 13 this proposition criticised, ihid, p. 14 when damage is done without negli- gence, by things done in pursuance of statutory authority, § 25, p. 24 Held lecently by the House of Lords that statutory compensation cannot be claimed by reason of anticipated smoke or noise of trains, whether part of claim- ant's land is taken or not [City of Glasgow Union, By. Co. v. Hunter, June 30, 1870, 2 H. of L. Ap., Sc. 78] Damno, Lex Aquii ia de (see Lex Aquilia). Danger (see Eisk), alternative danger in- curred to escape, § 79, p. 67 which might be averted by defendant by use of ordinary care, although more remotely caused by negligence of plain- tiff, does not ground plea of contributory negligence, § 83, p. 71 DangebuUS premises or tenement, liability of occupier and landlord, § 14, &o., and § 14, «., p. 15 similar to duty of corporation for INDEX. D ANGEKOUS —continued. public purposes to maiiitain their works, § 19, p. 20 — — entiance to dock [Mersey Docks, &e. V. Gihbsl § 17, p. 19 animal, liability of person keeping, §25, p. 24; §27, p. 25 thing harboured on land, liability for [Fletcher v. Mylands'], § 24, p. 23 mode of doing work, evidence of negligence, § 56, p. 51 ; § 71, n., p. 62 position on railway bridge, driver of train seeing children in [Singleton v. G. K By. Co.}, § 83, m., p. 71 defect known to lender of thing, im- plies culpa lata, and renders him liable, §60, p. 54, 55; § 88, p. 74 ■ ■ but not if unknown to him, ibid. operations, master of workmen em- ployed in, bound to take reasonable precautions for their safety, § 73, p. 63 condition of tackle known to servant' using it is contributory negligence ex- onerating the master, § 81, p 6i) Dakk night, on, trains approaching level crossing should whistle, § 31, p. 28 place, damage by falling in, on strange premises, § 32, »., p. 29 Debentures deposited with a bank for safe keeping [Gihlin v. McMuUen'], § 86, p. 72 [Me United Service Company], § 86, u., p. 72 Deckee of the Court, where there is a mistake in drawing up, duty of solicitor to gut rectified immediately, and liability for expense caused by failure to do so, . § 45, p. 43 Dedicatios to public purposes of profits of undertaking does not exonerate from duty of maintaining works, § 17, p. 19, 20 of way to public, infers no warranty rf its being in safe repair, § 89, p. 75 Deed under seal, grounds presumption of consideration, § 9, p. 10 under seal, where necessary, solicitor preparing agreement instead, held guilty of negligence [Parlier v. Bolls'], § 45, p. 43 Defect (see Danqekous Deeeot ; Latent Defect) Dbliot not logically opposed to contract, § 12, p. 13 Diligence (see Exact Diligence) DlI.lGENTIA QUAM IN SUIS EEEUS, &C., iu partnership, § 4, and § 4, n., p. 5 in deposit, § 87, p. 73 Delivery of goods to consignee (or lapse Delivery — continued of reasonable time after notice to him of their arrival) terminates the liability of the common carrier as such, § 34, p. 31 ; § 35, p. 32 to consignee, alone exonerates com- pany undertaking carriage, although the transit is partly oyer the line of another company, § 36, p. 32 Demise of ship by chai-terparty transfers the responsibility for goods carried, § 37, n., p. 35 Depositum was gratuitous in Koman law, and therefore the depositee "prmstat dulum tantum," § 4, p. 4 wliere merces was received, was not properly depositum but locatio, § 4, p. 4, 5 was classified as a contract made re, § 9, n., p. 9 in, Eomun lawyers held bailee li.il)le only for dolus (intention), or culpa lata, which the law refuses to distinguish from intention, § 85, p. 71 of valuables with banker for safe keeping [Gihlin v. McMulUn], § 86, p. 72 case distinguished where the bank received a commission for collecting dividends on securities deposited [Be United Service Company], § 86, n., p. 72 keeping a thing as one's own, sufiS- o:ent to rebut presumption of negligence arising from fact of loss, § 87, p. 73 Deviation (or de'tour), master liable for act of servant notwithstanding, § 65-67, p. 58, 59 owner liable for act of master of ship notwithstanding, § 68, p. 60 Diligence the opposite to negligence, § 1, p. 3 DiLiQENTiA implies that something less than culpa levis would infer guilt, § 2, p. 4 requin d where transaction is for sole benefit of obligee, § 3, p. 4 required from recipient of commo- datum, § 4, p. 5 (see Exact Diligence ; Cdlpa Lbvissiha) DiRECTOEs, in what cases and how sued for negligence, § 54, p. 48 constructive fraud, and nothing less, makes a case for suit in Oliancery against, ibid. of insolvent company may be sued- by liquidator for negligence whereby the fund available for creditors has been diminished, § 55, p. 49 Dock, damage to ship grounding at en- INDEX. 87 Dock — cmttinued trance of \_Mersey Doclis, &c. v. Gihbs], § 17, p. 19 company, damage through defective gangway provided by ISmitli v. London and St. Katherine Bodes Compawi/], § 33, p. 30 Dog, liability of person owning or harbour- ing, § 27. and § 27, «., p. 25, 26 -worrying sheep or cattle, ihid. damage to giime by, § 27, «., p. 25 DoLrs distinguished from culpa, and sig- nifies intention, § 2, p. 3 where transaction for benefit of obligor, obligee liable only for, § 3, p. 4 et culpa, -where for mutual benefit, ib-id. et culpa et diligentia, where for benefit of obligee only, ibid. inferred by a fiction from culpa lata, § 5, p. 6, 7, and § 6, p. 7 et culpa lata, the lowest obligation of indemnity, § 13, n., p. 14 culpa lata aeguiparata doh considered, § 84-89, p. 71-75 (including culpa lata), by the Roman lawyers, the bailee in deposit considered liable only for, § 85, p. 71 Domestic and personal relations, duties arising from, arise out of neither con- tract nor delict, § 12, p. 13 Donkey case, the oft-quoted [Vavies v. Mann'], § 83, p. 71 , DooB of railway caniage, negligence in shutting [Fordham v. L. B. & S. C. My. Co^, § 55, »., p. 50 Dkainage works, damage by flooding of land owing to negligent construction of [Collins V. Middle Level Commissioners], § 78, p. 67 Deilling hole in gas-pipe, damage by negligence in [Cleveland v. Spier], § 56, p. 51 Dbiving, riding, &c., give rise to questions of ordinary negligence, § 57, p. 51 case where a person gives a seat in carriage to another going on common errand, positive evidence of negligence desiderated, § 59, 60, p. 53, 54 not furnished by mere fact of the kingbolt being broken, the carriage having been periodically examined, ibid. careless, by a servant in course of employment renders master liable, § 62, p. 55 servant with horse and cart going home to dinner out of the line of his • work and against orders [Whatman v. Pearson, C.P.], § 64, p. 56 DmviNG — continued. new and independent journey [Storey V. AsMon, Q.B.] § 65, p. 57 [Mitchell v. OrassweUer], § 66, p. 58 [Joel V. Morison], fiolic of his own, § 67, p. 59, 60 ownership of the carringe is evidence of the person di'iving being a servant, § 66, «., p. 59 Dby Season, in, grass-cuttings beside rail- way ignited by passing engine and spreading fire to a distance, evidtnce of negligence, § 78, p. 66 Dtjb Cake warranted by carrier of pas- sengers by railway [Bedhead v. Midland By. Co.], § 40, p. 38 on the part of a railway company warranted by a company having running powers over their line, and contracting to carry a passenger over it ; sed quscre, § 42, p. 40, 41 Due Diligence (or care^, failure of, in re- pair of railway bridge [Kearney, cfcc], § 15, p. 16 Duty, criticism of term employed to mean duty of warranty, § 12, m., p. 14 to keep premises safe and conduct operations safely, § 14, p. 15 to use reasonable care in keeping bridge in repair, meaning exact dili- gence, § 15, p. 16 to make and maintain public works, for the use of which tolls are levied, § 17-19, p. 17-20 of public ofBcers, § 20-23, p. 20-23 sheriffs, § 20, p, 21 messengers-at-arms, ibid. notaries, § 21, p. 21 keepers of Scotch registers, § 22, p. 22 to restrain dangerous thing brought on premises, § 24, 25, p. 23, 24 in all these cases duty is of more than ordinary care, § 26, p. 24 to reinstate road broken up for a tem- porary purpose, § 28, /(., p. 26 ; cf. Hyams V. Webster, § 55, «., p. 50 imposed by statute upon railway com- panies to place watchmen at level cross- ing of a public carriage way, § 29, p. 26 b.ut not at a level crossing over a footway or private carriage way, § 29, p. 27 not implied in such case at common law, ibid. self-imposed precaution does not create, § 30, p. 27 of carriers of passengers by fast con- veyance, § 39, 40, p. 35-38 88 INDEX. DuTT — continued. of persons constructing and admitting the public for hire into" stand for view- ing public exhibition [Francis v. Goek- erell], § 41, p. 38, 39 of attorney or solicitor to client {see iBoLiciTOR), § 44-45, p. 41-50 person neglecting, not exonerated by having employed a contractor who also neglects it, § 75, p. 64 this holds in cases where the law demands more than ordinary care, or where less than ordinary negligence in- fers liability, § 76, p. 65 — — positive, distinguished from negative, ibid. ; cf. § 12, n., p. 14 ; § 26, p. 24 ; § 58, p. 52 servant's, to inform master of a fact is a reason for imputing knowledge to the master, § 62, n., p. 56 sphere of (see Cottese or Employ- ment) Batagb of oxen or sheep trespassing, owner liable for, § 27, m., p. 25 Employment {see ConESE of Employment) for hire (see Hire), in contract of, hirer not responsible for rists incident to the contract of service, § 69, p. 60 Emptio Venditio, a consensual contract in Eoman law, § 9, «., p. 9 Engine (see Looomottve Engine) Engineer, liability for omission of, where dangerous thing has been harboured upon land, § 24, p. 23 English Law, conception of contract con- trasted with that in Koman law, § 9, p. 9 regards actions arising out of tort (or wrong) aa a separate class, § 12, p. 12 this distinction Ulogical, ibid. Equity (see Chanoeey) postpones security of the person who, by negligently parting with control of a thing, has enabled another to commit a fraud [Bice v. Bice, &c.], § 55, »., p. 50 Ekkand, servant on, of master, and not on his own frolic, renders master liable for his negligence [Storey v. Ashton'], § 65, p. 57, 58 carman returning from, instead of putting up his horse driving oif to oblige a fellow-servant [Mitchell v. Crassweller'], § 66, p. 58 Erroneous information given in answer to casual inquiry of solicitor, by a person not his client, solicitor held not respon- sible for, § 54, p. 49 Error of judgment on nice points of law, solicitor not liable for, § 46, p. 43 ; §47, p. 44 Erskine, Professor, his rules concerning the degrees of liability, § 6, p. 7, 8 Escape, liability of sheriff for, § 20, p. 21 liability for, of dangerous thing har- boured on land [Fletcher v. ByUmds'], § 24, p. 23 Evidence, function of a notary in regard to, § 21, p. 22 m plea of reasonable and probable cause, to action of false imprisonment [Lister v. Ferryman], § 55, n., p. 50, 51 of dog's ferocity and owner's scienter, § 27, »., p. 26 Evidence of Negligence, — Brick falling from railway bridge [Kearney v. L. B. & 8. a By. Co],§ 15, p. 16 sugar bags from lift [8coU v. Liver- pool &c:\, § 16, p. 17 not furnished by omission to place watchmen at level crossings where not obliged by statute, § 29, p. 27 what is, in a train approaching a level crossing on railway, § 31, p. 28 onus of proof may be shifted by special contract in bill of lading (e.g. , " not responsible for leakage," &c.), § 37, p. 34 prima faide (see Prim! Facie Evi- dence), furnished by breaking down of carriage, &c., § 41, p. 39 when afforded by defective accommo- dations at railway station, § 41, p. 40 train causing collision, presumed to be under control of company on whose line it is, § 42, n., p. 41 in action by client ag-jinst solicitor, § 51, p. 46 when client resists enforcement of solicitor's bill of costs, § 52, p. 46 servant of railway company shutting gates at night damaged by falling of a plank left resting on gates by builder's workmen employed in repairing the sta- tion — not sufScient [Pearson v. Pluclt- netf], § 55, n., p. 50 shutting door of railway carriage [Fordham v. L. B. & 8. G. By. Co.; Biohardson v. Metr. By. Go.] ; § 55, n., p. 50 in cases of ordinary negligence some positive evidence of negligence is neces- sary, §16, p. 17; §56, p 51 by adopting dangerous mode of doing work, § 56, p. 51 by damaging a submarine cable in hauling up anchor, ibid. INDEX. 89 Evidence op Negliqbkce — continued. positive, desiderated in ciises -whpre oidinajy negligence is in question, § 58, p. 53 positive, desiderated in case wliere a person gives a seat iu his carriage to another, § 59, p. 53 not furnished by fact of kingbolt breaking, § 159, p. 54 J at least presumption rebutted by proof that carriage had been periodically examined, ibid. leaving horse and cart in street vm- attended [Whatman v. Pearson], § 64, p. 57 [lAjnch V. Kurderi], § 82, p. 70 where grass cuttings and trimmings of hedges beside a railway, in an excep- tionally dry season, were ignited by a passing engine, and spread fire to a con- siderable distance [Smith v. London & S.TT.JJj/. Co], §78, p. 66 in case of young child, is beinfi; left alone in public stieet sufficient? § 81, and note, p. 69 in case of securities deposited with a bank for safe keeping \_Giblin v. McMul- lerq, § 86, p. 72 where bank are bailees for reward [Be United Service Co.}, § 86, «., p. 72 in case of bailor in commodate, § 88, p. 73,74 in case of way dedicated to public, § 89, p. 75 Evidence of Ownership of vessel, prima fade, in a question of negligence, fur- nished by the ship register, § 37, n., p. 35 Ex CoNTBAC-ro — Ex Delictu, obligations arising, § 9, p. 9 the sharp line drawn between these by Eoman lawyers obscured the extension of Ihe rules of culpa, &c,, to the latter, § 12, p. 12 ihe distinction illogical, ihid. rights difficult to classify Uiider either are restitution, rights arising from the domestic relations, and from posses- sion, § 12, p. 13 Exact Diligence {exactadiligentia or dili- gentia 'see Culpa Levissima), § 2, p. 4. correlates to culpa lerisnma, ibid. —^ required from recipient of commoda- tum, § 4, p. 5 requu'ed fnjm mandatary and from negutiorum gestor, § 8, p. 8, 9 cases requiring, considered, § 13 p. 14, and following intended by the term reasonable dili- gence and care, § 15, p. 16 Exact Diligence — continued. required in the repair of premises in a question with strangers being where they have right, § 16, p. 17 required from sheriff, § 20, p. 21 of keepers of Scotch registers, § 22, p. 22 term generally applied by Eoman lawyers when more than ordinaiy care is demanded, § 26, p. 24 Examination of carriage in case where no kind of warianty is implied, may rebut any presumption of negligence from fact of kingbolt breaking, § 59, p. 54 Execution, liability of sheriff in, § 20, p. 21 ExfflBlTiON, stand for viewing [Francis v. Cockerell}, § 41, p. 38 Exuberant Tbust, peison to whom oun- fided must at least bestow the diligence which he is accustomed to use in his own concerns, § 6, p. 7 Express Contbact, insurance must be, § 13, »., p. 14 False Imprisonment, defence of reason- able and probable cause [Lister v. Ferry- man] § 55, «., p. 50, 51 Fake, payment of, not indispensable to establish a contract to carry a passenger, § 39, n., p. 35 Fellow-wobkman, or fellow-servant, negli- gence of, pieaumud to be within riok incident to contract of service, § 70, 71, p. 61 Ferooious Dog, owner liable for, if charac- ter known to bim, § 27, p. 28 what affords presumption of know- ledge, § 27, n., p. 26 Fence insufficient at place of unloading cattle from railway, company liable for [Booth v. N. K By. Co.], § 37, p. 34 Festinigg E ail way Case (damage fiom sparks'), § 25, 28, p. 24, 26 Fiction by wliich dolus is inferred from culpa lata, § 5, p. 6, 7 presumed culpa is a, as well as im- plied contract of warranty, § 13, n., p. 14 Fine, neglect of solicitor advising, to in- form client of effect in revoking a devise, § 53, p. 47 Fire from passing engine igniting giass cuttings left beside a railway in an ex- ceptionally dry season and spreading t:> some distiince, evidence of negligence against the company [Smith v. L. & 8. W. By. Co.], § 78, p. 66 Flaw in welding of tire of wheel, accident caused by [Itedliead v. Midlatui Uy. Co.]. § 39, p. 36 90 INDEX. Flooding of mine by bursting of reservoir [Fletcher v. Bylands], § 24, p. 23 of laud caiised by negligent construc- tion of drainage worlts [CoUins v. Middle Level Commissioners], § 78, p. 67 FooT-PASSENGEKS knocked down at level crossing on a railway [Stvhley v. L. B. & 8. a By. Co.], § 29, p. 24 IStubUy V. L. & N. W. By. Co.], § 81, p. 69 ■ ISkelton V. L. & N. W. By. Co.], § 82, p. 70 Foot-path crossing a railway at a level running alongside of carriage way [Bilhee V. L. & Brighton By.], § 31, p. 28 FoKEMAN no exception to rule that negli- gence of fellow-workman is regarded as a risk incident to the contract of service, § 69, m., p. 61 FoBEiGN OouKTS, function of a notary with regard to evidence in (see Notaky), § 21, p. 22 Feacd, only such negligence (orassa negli- gentia) as the law constrvies to be fraud will support a bill in Chancery, § 54, p. 47, 48 case of Turquand v. Marshall was constioictive fraud, or culpa lata aequi- parata dolo, § 55, p. 50 negligence in parting with control of a thing, whereby another is enabled to commit a fraud, consequences at law and in equity of [MatJiews v. Discount Corp., &c.], § 55 m., p. 50 FuAODS, Statute op, operates like the littersd of the Romans, § 9, n., p. 9 Fbenoh Bills of Exchange, duty of at- torney suing upon, to ascertain whether they have been indorsed in accordance with French law [Long v. Orsi], § 47, p. 44 Fbolic op his own, master not liable for servant going upon, § 67, p. 60 Fbugi et bilxgentes, homines, criterion of diligence required in matters of ordinary common sense, § 4, p. 5 Future prospects may be taken into con- sideration in estimating measure of da- mages [Fair v. L. & N. W. By. Co., Q.B., 18 W. E. 66] Game, damage to, by dogs trespassing, § 27, »., p. 25 Gangway, damage arising from defective [Smith V. London, (fee, Dock CoX § 33, p. 30 Gas Company negligence of, in laying down defective pipe [Burrows v. March Gas Co:], § 78, p. 67 Gas-pipe, negligently drilling hole in, § 56, p. 51 Gate-keepek at level crossing, intimation by, that the line was safe [Lunt v. L. & N. W. By. Co.], § 29, p. 27 discontinuance of keeping, as a self- imposed precaution, no evidence of ac- tionable negligence, § 30, p. 27 Gates required by statute to be provided at level crossings over public carritge road, § 29, p. 26 ■ case when carriage and footway to- gether crossed a line at level [BiVbee v. L. & B. By. Co:], § 31, p. 28 Genekal Obdees, act of servant contraiy to, no answer to an indictment for, nui- sance against the master, § 14, p. 16 General Hhip, master or owner of, is prima facie a common earner, § 37, p. 34 but his liability maybe qualified by the term of the bill of lading, ibid. Glandeued Hobse, liability incurred by giving, to be put into stable [Penton v. Murdoch], § 88, p. 75 Goods (see Common Caebieb) carried by sea, discharge of, regulated by statute, § 84, p. 31 sent on account and at risk of con- signee, consignee is the person to sue for loss of, § 86, p. 32 sent on approval, &o., consignor must sue, ■Md. Gbass-cuttings beside railway set fire to by passing engine in exceptionally dry season, and spreading fire to a consider- able distance, evidence of negligence, § 78, p. 66 Gbatuitous undertaking involves a legal duty [Coggs v. Bernard], § 10, p. 10 service of person professing skUl in- volves' a duty, § 11, p. 11 may perhaps be taken account of by a jury in acquitting, § 11, p. 12 term applied to case where a person gives a seat in his carriage to another going on common errand, § 60, p. 54 Qusere, whether the term is ap- propriate, ibid. loan (see Commodatum) loan of scaffolding, lender does not warrant that it has been carefully con- structed, although lent for a purpose in which he is interested, § 60, p. 55 deposit (see Depositum) bailee may be responsible for gross negligence or great want of skill, § 88, p. 74 Gboss Negligence, use of this term recti- INDEX. 91 Gkoss Negligence — continued, fied, § 4, p. 11, 12; § 47, p. 44; §59, p. 53; §60, p. 54; § 87, p. 73 said to be only ordinary negligence Tvitti a vituperative epltliet, § 11, p. 11 sometimes means only considerable negligence, § 11, p. 12 equated by law to wilful wrong, the lowest ground of indemnity, § 13, n., p. 14 use of term as applied to negligence of attorneys explained, § 47, p. 44, 45 construed as fraud by Court of Equity, § 54, p. 47, 48 term loosely applied in case of giring a seat in a c;in-iage to a person going on common errand [Moffatt v. Bateman], § 59. p. 53 ; § 60, p. 54 of kind which law equates to inten- tion not answered by contributory negli- gence, § 82, p. 70 — — evidence of, in case of deposit of valu- ables with a bank for safe keeping, held insufiacient [Giblin v. McMullen'], § 86, p. 72 gratuitous lender as well as deposi- tary may be liable for, § 38, p. 73, 74 Gkounding of ship on bank at entrance of dock [Mersey Docks, &c., v. Gibbs'], § 17, p. 19 Gkgunds of legal liabiUty, the object of this essay to determine, § 12, »., p. 13 Guest (see Host akd Gdbst) Guilt, negligence, &c., grounds of im- puting, § 11, p. 3 Gun for use of plaintiff and his sons [Lang- ridge V. Levy], § 79, p. 68 Haib-wash for use of plaintiff's wife [George V. Skivington'], § 79, p. 68 HABBorKLNG things in their nature dan- gerous, liability for [FUicher v. Bylands'], § 24, p. 23 Hatchway, damage from falling through unguarded, on transit to » passenger ship [John v. Bacon], § 42, p. 41 Haystack burnt by sparks from a locomo- tive used without statutory authority [Jones V. Festiniog By. Co.'], § 25, p. 24 Hearsay evidence, what is, in defence of reasonable and probable cause to action of false imprisonment [Lister v. Perry- man'], § 55, »., p. 50, 51 /-h '-- ■','.■,,■ Heedlessness distinguished from negli- gence in the popular sense of the word, § 1, p. 2, 3 positive duty to take care, distin- guished from negative duty of not being guilty of, § 76, p, 64 ; § 58, p. 52 Heritable title to lands in Scotland, function of notary in regard to, § 21, p. 22 Highway, contractor having opened, under statutory powers and afterwards pro- perly reinstated, not liable for natural subsidence of soil [Hyams v. 'Webster], § 55, «., p. 50 Hire, liability incurred by contract of, not greater than that involved in mandate, §11, p. 12 contract to carry for (see Common Carrier) contemplates benefit of both parties, § 34, p. 30 carrier of passengers for, distinguished from person giving seat in his carriage to another, § 59, p. 53 in contract of employment for, hirer not responsible for risks incident to the contract of service, § 69, p. 60 one who gives another dangerous goods to cai'ry for, is bound to give notice of then' dangerous character [Farrant v. Barnes], § 88, p. 74 Hole in floor of theatre, damage to su- pernumerary falling through, § 32, p. 29 in road caused by natural subsidence of materials after being opened and pro- perly reinstated, contractor not liable for, § 55, «., p. 50 Holt, C. J., his judgment in Coggs v. Ber- nard, § 10, p. 10 follows Eoman law in treating man- date as involving a duty, § 11, p. 11 Horse, protected under the Act protecting sheep and cattle from worry by dogs, § 27, m., p. 26 and cart, damage by, negligently left in street by workman entrusted with them, having gone a mile out of the proper line of his work [Wkatman v. Fearson], § 64, p. 56 frightened by jet of water upon public road \JiiXl v. New Biiier Co.] § 78, p. 67 glandered [Fenton v. Murdoch], § 88, p. 75 and cart left unattended in public place, evidence of gross negligence from which law may presume intentional mis- chief, § 82, p. 70 Host and guest, relation between, implies liability for ordinary negligence only, §33, p. 30; §59, p. 53 Husbandry good, for purposes of, railway aooummodatioQ works must be sufficient, §17, «., p. IS 92 INDEX. iGNOEANCB of obstruction does not excuse corporation having duty to maintain a dock [Mersey Docks, &a., v. Gibbs'], § 17, p. 19 Implied warranty as a ground of liability not distinguishable from culpa levissima, § 13, n., p. 14 Impeisonment, false, defence of reasonable and probable cause [Lister v. Ferrymaii], § 55, n., p. 50, 51 Incident to the contract or seiTice ; Eislr, (see Risk incident to the, Conteact) excludes the responsibility implied by invitation. § 32, p. 28 forms an exception to the maxim respondeat superior, § 69-74, p. 60-64 Inadvertence includes negligence, &c., § 1, p. 3 Inconvenience suffered by individual of the same kind as that suffered by the public does not ground remedy by action, § 14, m., p. 15 negligent person not liable for danger incurred to escape, § 79, p. 67 Inodp.sus hostidm, recipient of commodalum liable for, si peregre secwm ferat, § 4, p. 6 Indemnity, obligation of, may be grounded on culpa (actual or presumed) or on contract (express or implied) of warranty, § 13, n., p. 14 analysis of this obligation, ibid. Independent Contbactob {see Contbao- toe) Independent journey, master not respon- sible for servant going npoii, not in course of employment, § 65-67, p. 58, 59 Indians, case of negligence arising out of employment of, to burn brushwood [Serandat v. Suisse'], § 77, p. 65 Indictment for keeping premises in a dan- gerous state, § 14, p. 15 against public company for neglect- ing statutory duty, § 17, n., p. 18 ; § 19, p. 20 Injury constituted by damaging act or omission preceded by negligence or in- tention, § 1, p. 3 small negligence suffices, where the law requires great diligence, § 1, p. 3. may arise out of ointract, § 12, p. 13 may be a breach of duly which is neither imposed by contract nor arises out of delict, ibid. in order to infer, where there is neither privity of contract nor proximity of time and place, intention or its equiva- lent, cvXpa lata, must be there, § 79, p. 68 Inhabitants of Parish, indiolmout for Inhabitant op Parish — continued. not repairing road, lies against, unless the ToaAe have become vesled in a local board under the Public Health Act% § 14, »., p. 16 Instinct of English lawyers sometimes more correct than their language, § 11, p. 11 Insubance is a contract of indemnity against casus (or act of God) and must be express, § 13, n., p. 14 [N.B. Consequently marine insurance, as construed in cases of total loss, is not, properly speaking, a contract of insurance, but a legalised wager. Further, it is a misuse of language to say ihat a common carrier is an insurer, because be does not en- gage against the act at God. The nature of his contract is a warranty of safe carriage.] in a voyage policy for the ship im- plies warranty of seawortiiiness, § 37, p. 35 Insurer, carrier of passengers is not, § 39, p. 37 ; § 40, p. 38 Intention distinguished from negligence, &c., § 1, p. 3. (rfoZus) or culpa lata (see Culpa lata) the lowest ground of liability to indem- nify, § 13,»., p. 14 contributory negligence no answer to action grounded on, § 82, 83, p. 70, 71 (dolus) and its equivalent culpa lata considered as grounds of injury, § 84-89, p. 71-75 Inteebogatories before declaration, re- fused in action against railway company arising out of a collioion [Bechervaise v. G. W. By. Co., L. E. 6 0. P. 36, Nov. 24, 1870.] Intimation that the line was safe, at level crossing (Stapley v. X. B. & S. C. By. Co. ; Imnt V. L. & N. W. By. Co.) § 29, p. 27 Investigation of title, liability of solicitor for failure in, § 45, p. 42 Invitation to come upon premises, duty implied by, § 32, p. 28 ; § 57, p. 52 inferred from common interest, § 33, p. 29, 30 in legal sense does not include the relation between host and guest, § 33, p. 30 to alight at railway platform, cases cited, § 40, n., p. 38 Involuntary Bailee, carrier of goods after refusal at address of consignee, is, and as such only liable for ordinary negli- geuce, § 35, p. 32 INDEX. 98 Jones, Sib W., his essny on tho law of bailment, § 10, p. 11 • follows the Eoman law in' treating mandate as involving a duty, § 11, p. 11 JujjQE, irresponsible on grounds of public policy, § 21, n., p. 22 JriiiSDiCTioN to entertain question of soli- citor's negligence, taxing- master has not, § 54, p. 48 of Court of Chancery in cases arising out of negligence {see Chanoeky), § 54, p. 47-49 of Admiralty Court exercised in case of " damage by ship to submarine tele- graph cable, § 56, «., p. 51 JuKT, ordinary negligence generally a question for, § 44, p. 41 ; § 56, p. 51 in Scotland, reasonable and probable cause in false imprisonment, is question for, § 55, n., p. 51 question properly left to, whether a man having charge of horse and cart having gone home to dinner a mile out of the Hue of hia work was acting in the course of his employment, § 64, p. 57 Keepees op Kecohds of heritable title in Scotland guarantee accuracy, § 22. p. 22 Kingbolt broken, in ease of driving a guest, not positive evidence of negli- gence, § 59, p. 53 at least presumption rebutted by proof that carriage had been periodically examined, ibid. Knowledge (see Scienter) of existence of submarine cable not necessary in order to infer negligence from damage to it by recklessly hauling up anchor, § 56, p. 51 by servants whose duty is to inform the master may be imputed to the master, although a corporation, § 62, n., p. 56 of dangerous defect in thing lent infers cidpa lata in the lender, and renders him responsible, § 60, p. 54, 55 ; § 88, p. 74 Land (see Occupier), liability of person harbouring dangerous thing upon {Flet- cher v. Bijlandu), § 24, p. 23 Right to support, § 18, n., p. 17 Lantloed and tenant, when respectively liable for dangerous tenement, § 14, n., p. 15 Lata Odlpa {see Cclpa Lata) Latent Deeect, break down of mail-coach from, damnvm absque injuria to driver {Winterhottom v. Wright), § 12, n., p. 14 in wheel of their carriage, rail- Latent Deft'CT — continued. way company as carriers of passengers not liable for (Bedhead v. Midland Ity. Co.), § 30, 40, p. 36-3S Law op Bailment, Sir W. Jones' treatise on, § 10, p. 11 Law-Agent (see Solioitoe) Leakage, not responsible for, § 37, p. 34 (Cases cited at foot) Lender liable for concealing a dangerous defect of which he knows, § 88, p. 73, 74 Level Ceossings on railways, § 29-31, p. 26-28 statutory enactment where the crossing is over a public carriage-road, § 29, p. 26 question with a foot passenger {Siapley v. L. B. & 8 C. Rij. Co.) § 2'J, p. 27 intimation of line being safe {Lunt V. L. & N. W. My. Co.), ibid. no duty as to foot-way or private carriage-way, ibid. failure to observe self-imposed precaution not negligence [SlceUon v. L. & N. W. By. Co.l § 30, p. 27 . nor is omission to exercise a sta- tutory power [Cliff -v. Midland By. Co.'], bid. footway along side of carriage way crossing at dangerous spot [^Bilhee V. L. & Brighton By. Co:], § 31, p. 28 when it would be a reasonable precaution to whistle, ibid. where no express statutory duty on company, person at least bound to look before he crosses, § 81, p. 69 ; § 82, p. 70 Lex Aquilia de JDamko, culpa levissima, inferred liability under, § 2, n., p. 4; §4, p. 6; §12, p. 12 obligation under, expressed by the maxim Sic uiere tuo, &c., § 13, p. 15 Licence distinguished from invitation, and negatives the responsibility implied by the latter term, § 32, p. 29 ; § 57, p. 52 owntr or occupier liable to licensee for ordinary negligence only, § 57, p. 52 in case of, owner commonly said to be liable for commission, but not gene- rally for omission, § 58, p. 52 " i.e., positive evidence of negli- gence is required, § 58, p. 53 Liquidator of company may maintain action against directors for negligence whereby fund availnble to creditojs is diminished, § 55, p. 49 Littehis, contra<'ts, in Eoman law ana- logous to contracts under Statute of Frauds, § 9, n., p. 9 94 INDEX. Loan (see Commodatum) of scaffolding does not imply war- ranty of its having been carefully con- structed, although lent for a purpose in which the lender is interested, § 60, p. 55 Local Boakd under Public Health Acts, action does not lie against at suit of individual damaged by disrepair of parish road [Winterbotlmn v. Lord Derby}, § 14, n., p. 16 LooATio-cONDucTio, Contract of, infers lia- bility for culpa simply, § 4, p. 5 a consensual contract in Roman law, § 9, n., p. 9 Locomotive Engine not authorized by statute to be used, damage by sparks from IJones v. Festiniog By. Co.], § 25, p. 24 ; § 28, p. 26 different case when use of the engine is authorized by statute [Yauglian v. Taff By. Co^], ibid. heaps of grass-cuttings beside rail- way ignited by, in a very di-y season, and spreading fire to some distance, evidence of negligence against company, § 78, p. 66 Loss OP Makket, stipulation against being responsible for damage by, held reason- able \_Lord V. Midland By. Co.}, § 37, p. 33. 34 LroGAQE (see Passengee's Luggage) Maohineet, obligation of employer to have, in safe condition, § 73, p. 63 ; § 81, p. 69 of saw-mill shipped to Vancouver s Island, and on arrival there, essential part of machinery foimd wanting, shippers not liable for special damage [British Columbia Saw-mill, Ac.}, § 80, p. 68 Mail-coach, case arising out of break down of, damnum absque injuria to driver [Winteriottom v. Wriyhi], § 12, n., p. 14 Making and Maintenanxe of public undertakings, duty of, § 17, p. 17, &c. case of Mersey Docks, &e. v. Gihhs, § 17-19, p. 17-20 Majok vis (see Vis major) Mandataby, responsible for culpa, § 8, p. 8; §10, p. 10 Mandate, liability involved by, in Roman law, § 8, p. 8 a consensual contract, § 9, n., p. 9 Coggs V. Bernard was a case of, § 10, p. 10 j in Roman law involved liability for culpa, § 10, p. 10 1 Mandate — continued. this p linciple followed in the prac- tice of English lawyers, § 11, p. 11, 12 Mansfield (Lord), his sanction given to the term erassa negligentia in a loose sense, § 47, p. 44, 45 Market, stipidation against responsibility for damage by loss of, held reasonable [Lord V. Midland By. Co.}, § 37, p. 33, 34 Mastee and servant, relation of, involves liability in cases where ordinary negli- gence is in question, § 18, •«., p. 20 ■ responsible for servant acting within his sphere of duty or in the course of his employment (see Oolese of Employ- ment), § 61-67, p. 55-60 knowledge may be imputed to him of facts known to a servant whose duty it was to inform him, § 62, n., p. 56 not responsible when servant starts on a new and independent journey which has nothing to do with his employment, § 65, p. 58 responsible although servant execute his orders in a roundabout way, but not where servant is doing what he is not employed to do at all, § 66, p. 58, 59 not absolved by shewing tliat act of servant was unauthorized, § 66, n., p. 59 ■ — — or that it was contrary ta his general orders, § 67, »., p. 60 not responsible to servant for risks incident to contract of service, § i 9, p. 60 of which the negligence of a fellow-servant in a common employment is presumed to be one, § 70, 71, p. 61 is answerable to servant for personal negligence, § 69, »., p. GO e.g. (perhaps) ~waut of care in the choice of servants, ibid. but not for negligence of his foreman in the choice of servants, § 69, »., p. 61 where he does not superintend woik himself, bound to select proper and com- petent persons to do so and furnish them with adequate materials and resource?, § 73, p. 63 where he employs a servant in work of a dangerous character he is bound to take all reasonable precautions for thi; safety of the workman, ibid. Cf. Wat- ling V. Oastler, Jan. 25, 1871. Ex. although he neglects a statutory precaution, the negligence of the servant is a defence, § 81, p. 69 Mast ee of Geneeal Ship, prima, facie a common carrier, § 37, p. 33 but may qualify his responsibility by bill of lading, ibid. INDEX. 95 Master op Ship sometimes liable for negligence of those over whom he Las no control, § 37, p. 35 although himself a servant or agent may be sued for the negligence of those on board as if he were the principal, § 62, n., p. 55 acting in scope of authority renders ownei-s liable for collision caused by negligence, § 62, p. 56 — although at the time making a deviation, § 68, p. 60 Materials, master of operations bound to furnish adequate, § 73, p. 63 Measure op Damages, under Lord Camp- bell's Act in England based on calcula- tion of pecuniary loss, § 39, 74., p. 36 in estimating, future prospects may be taken into consideration [Fair v. L. & N. W. Rtj. Co., Q.B., 18 W. E. 66] MEDDLtNG by young child with thing which would be safe if let alone \Mangan v. Atterton], § 81, pp. 69, 70 Merges (hire or reward), reduces deposit to a contract in which the bailee is liable for ordimry negligence, § 4, p. 4; § 85, 86, and 86 «., p. 72 Mekset, case of damage arising from "accumulation of mud at entrance of duck, § 17-19, p. 17-20 Messenser-at-Aems in Scotland, like she- riffs in England, are responsible public officers, § 20, p. 21 Metropolitan Board of Works, con- tractor under, not liable for niitiiral subsidence after properly filling in a. trench which he had opened in a highway [Hyams v. Webster'], § 55, ■«., p. 50 in action for negligence for things done under their Act notice must be given [PouUum v. Thirsi], ibid. Mine, dama;?e to, by bursting of reservoir [Fletcher v. Mylands], § 24, p. 23 Ministers op Government not liable to action for negligence of inferior servants in their departments, § 23, p. 22 Mischief, harbouring on land thing likely to do mischief [Fletcher v. Rylands], § 24, p. 23 child getting into, § 81, p. 70 some, the natural consequence of horse and cart being left unattended in public place, § 82, p. 70 Misdescription in particulars of sale, lia- bility of solicitor for, § 45, p. 42 Misfeasance {see Nonfeasance) Misrepresentation of facts to oom-t, lia- bility of solicitor for, where truth might Misrep resent at I ON — con tinned, have been ascertained by reasonable cai'e, § 45, p. 43 Mistake in drawing up decree, duty of solicitor to have immediately rectified, § 45, p. 43 Modern Civilians, their rules concerning degrees of liability, § 6, p. 7 Mortgage, negligence of solicitor relating to, § 45, p. 42, 43 Motion in suit of Chancery may be made to recover costs against solicitor whose negligence has caused them to be in- curred, § 54, p. 48 Mutual Benefit (see Benefit of both Parties) Mutcum, a contract re in Roman law, § 9, «., p. 19 Natural subsidence, contractor not liable for, after properly reinstating road, § 55, «., p. 50 NAUTiE Caupones Stabularii, &c., the celebrated edict of the prsetor, § 38, p. 35 Negative duty as opposed to positive duty (see Commission and Omission), § 70, p. 65 Negligence, law of, subject of this essay, § 1. P- 2 termed " culpa " by the Roman law- yers, § 2, p. 3 definition of, by Alderson, B., § 1, p. 2 this definition applies to ordinary negligence, ibid. the popular sense of the word dis- tinguishable from heedlessness and rashness, ibid. properly denotes a state of mind, and not the injurious act or omission itself, § 1, p. 3 or intention, &c., a condition pre- cedent to injury, ibid. used in this essay to denote every species of inadvertence, § 1, p. 3 ordinary (see Ordinary Negli- gence), comprises many degrees or shades, to be estimated according to cir- cumstances, § 4, p. 5 , gross (see Gross Negligence), use of this expression rectified, § 11, p. 11 jii'y in acquitting may take into ac- aceount the gratuitous nature of the service, § 11, p. 12 principles concerning, extended to cases arising ex delicto, § 12, p. 12 formed the ground of action under Ux Aqvilia in Roman law, § 12, p. 12 96 INDEX. Negligence — continued. in consiJeritig duties arising from, I ignore the distinction whether the pri- mary duty arises or does not arise out of contract, § 12, p. 13 order in which subject treated in detail, § 13, p. 13, 14 ordinary, quaere whether liability of C. for, altered by the fact of contract exist- ing between A. and B., § 12, «., p. 14 slight, liability infen-ed from (see Odlpa Levissima), § 13, p. 14 borrower liable for, § 13, p. 15 action for, against railway company for disrepair of bridge over public road [Kearney, :\, § 32, p. 30 fieneral, master or owner, prima facie a common carrier, § 37, p. 34: seaworthiness of, warranted to owners of goods, § 37, p. 35 and to insurers on a voyage policy, ibid. but not to the crew, § 74, p. 64 anchor of, fouling submarine cable, §56, p. 51 . questions arismg from collision, are questions as to ordinary negligence, § 57, p. 51 between sailing-vessel and steamer, § 83, p. 71 master of, acting within scope of authority makes his owners liable for collision, § 62, p. 56 although deviating to perform salvage services, § 68, p. 60 becoming unmanageable through neg- ligence of captain and crew, and damag- ing plaintiffs sea-wall [Bomney Marsh v. Trinity House], § 78, p. 67 Shipowner may- discliarge himself from liability by discharging as prescribed by statute, § 34, p. 30 is prima facie a common carrier, § 37. p. 34 Shipowner — continued, but liability may be qualified by bill of lading, ibid. who is responsible as, in case of char- tered ship, depends on whether the charterparty contains a demise of the ship, § 37, m., p. 35 sometimes liablefor negligence of those over whom he has no control, § 37, p. 35 bound to shipper of goods to furnish ship good and capable for the voyage, § 39, p. 37 SlO UTERE TUO CT AlilENUM NON L^DAS expresses the responsibility to strangers in the use of one's own property, § 13, p. 15 the principle applied under lex Aquilia of the Komans, ibid also, to limited extent, recognised in our law,, ibid. obligation to have tenement in safe condition absolute, § 14, p. 15 so is obligation to restrain dangerous thing brought on premises, § 24, p. 23 except when warranted by sta- tute, § 28, p. 26 then only duty to take reason- able precautions, § 29, p. 26, &c. cf. Sill V. New Biver Co. ; Collins v. Middle Level Commissioners, § 78, p. 67 Similar Cirocmstances, both parties being in, implies that ordinary negligence is the criterion, § 57, p. 51 e.g., oifering seat in one's caiTiage to another [Moffatt'v. Bateman], § 59, p. 53 Skill, profession of, involves a duty in a person even acting gratuitously, § 1 1, p. 1 1 liability of persons employed for, considered, § 21, n., p. 22 notary in England regarded merely as a person of, § 21, p. 22 reasonable, must be brought by soli- citor (or attorney) to performance of business entrusted to his charge, § 45, p. 42 Skilled Labour, diligence required in hiring of, § 4, p. 5 might fairly be classed amongst cases where extraordinary care required, § 21, «., p. 22 but this inconvenient' owing to the different shades of duty in different cases, ibid. Slight Negligence distinguished from considerable (under the term "gross") negligence, § 11, p. 12 oases of, considered, § 13, p. 14, and following (^See Culpa Levissima) Slippery Stair at railway station [Crafter V. Metr. By. Co ] § 41, p. 40 INDEX. 107 Sluice, damage to land caused by bursting of ICoe V. Wisel § 17, »., p. 18 Smoky Place on dark night, trains ap- proaching level crossing at, should whistle, § 31, p. 28 SocrETAS, a consensual contract in Boman law, § 9, n., p. 9 Solicitor and Client, and attorney and client, questions arising out of relation between, § 43-55 ; p. 41-42 SoudTOB (oE Attoknet), bound to bring a reasonable amovint of care, diligence, skill, and knowledge, § 45, p. 42 Uable for misdescription in particulars of sale, ibid. causing abortive expenses, ibid. allowing client to enter into unusual covenant without explanation, ibid. omitting to investigate title, ibid. laying before counsel incomplete abstract, ibid. ■ omitting to make the proper searches, ibid. omitting to give notices to secure priority, ibid, — — not liable for omitting to ascertain value of subject proposed for security, ifyid. nor for omitting to warn client against an indiscretion, e.g., advancing the money without first obtaining the security, § 45, p. 43 liable for taking a security by agree- ment only in a case where deed imder seal ought to have been got, ibid. taking oflBce of receiver and omitting to collect rents, ibid. omitting to get immediate correction of a mistake in drawing up decree of the Court, ibid. for expenses caused by allowing facts to be misrepresented to the Court, when he might have ascertained the truth, ibid. liability in conduct of causes summa- rized by Tindal, C.J., § 46, p. 43; cf § 47, p. 44 non-observance of rules of practice, ibid. preparation of cause and attendance of witnesses, ibid, mismanagement of cause in matters usually allotted to his department of the profession, ibid. not liable for error of judgment on nice or doubtful points, ibid. what is meant by the expressions crassa negligentia, &c., when applied to this class of cases, § 47, p. 44 SoLIoiTOB — continued. not bound to know the whole law, § 47, p. 45 not exonerated by opinion of counsel where law would presume him to have the req^uisite knowledge himself, § 48, p. 45 may enter into a compromise if he acts bona jide, and with reasonable care and skiU, § 49, p. 45 but not against the client's express prohibition, ibid. liable for default of his agent, part- ner, or clerk, § 50, pp. 45, 46 in action against, for negligence client bound to prove negligence in fact, or by necessary inference, § 51, p. 46 if negligence proved in fact solicitor to exonerate himself must shew that client haa not been damaged by it, ibid. when client resists payment of bill of costs, solicitor must shew affirmatively that he has done his duty, § 52, p. 46 on what grounds may client success- fully resist payment of bill of costs, ibid. sometimes in equity disallowed costs although no actionable negligence esta- blished, § 53, p. 47 bound in strict duty to insert power of revocation in voluntary settlement of person lying in extremis, ibid. and to insist upon a person being separately advised in case where undue intluence might be suspected, ibid. to inform client levying a fine, that it would revoke a devise in his will, ibid. cannot derive benefit from result of his own negligence, § 53, p. 47 bUl in Chancery does not lie against, except for fraud or such gross negligence as Equity construes to be fraud, § 54, p. 47, 48 — but costs of a proceeding in Chancery maybe recovered against him by petition or motion in the suit, § 54, p. 48 quaere, can the Court give general relief on petition or motion in case of mere negligence, ibid. at all events may decline to do so ibid. not liable for erroneous information casually given to person not his client, § 54, p. 49 right of action for negligence against, passes to assignee in bankruptcy of the person damaged, if result of negligence has been to diminish the fund available for creditors, § 155, p. 49 Spakks from a locomotive not authorized 108 INDEX. Sparks — continued . by statute to be used [Jonee v. Fesiiniog By. Cori, § 25, p. 24 ; § 28, p. 26 Special Contbaot by railway companies for cairiage of goods, controlled by Eail- way and Canal Traffic Act, § 37, p. 33 must be " reasonable " and signed by other party to contract, ibid. exempting railway company from loss on line not worked by them, not struck at by Railway Traffic and Canal Act, § 37, p. 34 to carry by sea will not exempt from liability for negligence, unless it is ex- pressly so stated in the bill of lading IBrass v. MaiUand, &c.], § 37, p. 34 Special Damage claimed by commercial traveller for personal expenses incurred while waiting for box lost by railway company, held too remote [Woodger v. G. W. By. Co.l § 79, p. 68 Sphebe op Duty (See Couese of Employ- ment ; Scope of Authoeity) Speing Guns, action for serious damage from, not answered by allegation of tres- pass, § 82, p. 70 Stage Coaches, greater care required in construction of, than in conveyances of less rapid transit, § 39, p. 36 Staib (Loed) his philosophical method of classifying obligations, § 12, p. 13 Staircase, falling down, in the dark while on business at the premises [Wilkinson V. Fairrie], § 32, m., p. 29 at railway station being slippery, no evidence of negligence [Grafter v. Metr. By. Co:\, § 41, p. 40 worn away, held evidence of negli- gence [Leishman v. L. B. & 8. C. By. Co.'], ibid. Stand (See Eaoe-stand). Station, railway porter at, injured by negligence of company having joint use of station with the company whom' he served [Warhwrton v. G. W. By. Co.], § 72, p; 62 Statute, duty of keepers of Scotch re- gisters, defined by, § 22, p. 22 empowering person to break up road for temporary purpose, implies duty to reinstate, § 28, »., p. 26 relating to level crossings, § 29, p. 26 where no express duty imposed by, person at least boimd to look before he crosses, § 81, p. 69 controlling special contracts made by railways as carriers of goods, § 37, p. 33 Statute — continued. enacting precautions for safety of workmen engaged in certain dangerous operations (7 & 8 Vict. c. 15, s. 21), § 73, p. 63 contributory negUgenoe, a de- fence to action founded on § 81, p. 69 Statute Labour Eoad crossed by railway at a level, gates required at, § 29, p. 2'j Statutory corporations for public under- takings, liability of, § 17, p. 17, 18 case of Mersey Docks, &c. v. ffifc&s, § 17, 19, p. 17—20 authority exempts from liability where all reasonable precautions are taken, § 25, p. 24; § 28, p. 26 cf. JB.iil V. jVeu) Biver Company, Collins V. Middle Level Commissioners, § 78, p. 67 Stbam-boat and sailing vessel or barge, questions arising out of collision between, § 83, p. 71 Stevedore is an independent contractor [Murray v. Currie], § 37, p. 35 but shipowners, as common carriers, are responsible for his negligence, ibid. where seaman engaged under orders of, does negligent act, the owners of the vessel are not responsible, § 72, p. 62 Stowage, negligent, shipowner liable for, in case of vessel put up as general ship, § 37, p. 35 Strangers, responsibility to, in use of property, § 13, p. 15 ; § 16, p. 17 to restrain dangerous thing brought on premises, § 24, 25, p. 23, 24 is more than the duty of or- dinary care, § 26, p. 24 liability of, contrasted with that of owner or occupier, § 57, p. 52 ■ care in selection of servants no an- swer to claim by, damaged by their negligence, § 62, p. 56 Street, young child run over in, no evi- dence of negligence on part of the child, § 81, «., p. 69 Strong Eoom of bank, securities placed in [Giblin v. McMuOen], § 86, p. 72 Submarine Telegraph Cable, negligent damage by ship's anchor, § 56, p. 51 "Subsidence of soil (natural) does not prove failure of duty to reinstate road, § 28, »., p. 26 Sugar Bags falling from Kft [Scott v. Liverpool Dock Company], § 16, p. 17 Suit (see Chancery), rendered necessary by wilful neglect of duty by trustees, they must pay the costs, § 55, n., p. 51 Summary Application in suit in Chancery INDEX. 109 Si'MMABY Applioatios — oonHnued. to recover costs against solicitor, whose negligence caused their being incurred, § 64, p. 48 Superlatives not necessary in speaking of the degrees of negligence or care, § 13, p. 15 SupERNL'MERAKT at theatre falling through iinfenced hole in floor [Seymour v. Maddox], § 32, n., p. 29 Sltfport, right to, for land and buildings, §17, ».,p. IS Tackle used by servant with notice of its being in dangerous condition, is con- tributory negligence exonerating the master, § 81, p. 69 Taxing Master has no jurisdiction to entertain question of solicitor's negli- gence, § 54, p. 49 Tbijegram, nobody responsible for mistake in, except the clerk who makes it, § 36, n., p. 33 P^'.B. — The government, stepping into the shoes of the companies, now reap the benefit of this feature of our common law.] otherwise in America, where the telegraph company is deemed a common carrier of messages, ibid. Teijegraph, submarine cable negligently damaged by ship's anchor, § 56, p. 51 TBLiiORAPH OoMPANT, no privity between, and receiver of the message [Play ford v. U. E. Tel. Co.l § 36, n., p. 33 Tenant (see Occupier ; Landlord and Tenant). Tenements, obligation of occupier to keep in safe repair, § 14, p. 15 landlord liable for nonfeasance or misfeasance, § 14, re., p. 15 obligation to strangers to keep in re- pair, similar to duty of corporation for public purposes to maintain their works, § 19, p. 20 Theatre, supernumerary faUing down hole in floor [Seymour v. Maddox], § 32, p. 29 Through Traffic. The company making the contract for, is liable (in case of goods) for the loss of the goods, and in case of passengers, for the negligeni'e of the other companies, § 36, p. 32 ; § 42, p. 40 Ticket, possession of, not indispensable to establish a contract to carry a passenger by railway, § 39, n., p. 35 Tire of wheel, accident caused by break- ing of [Bedhead v. Midland By. 00.1, § 39, 40, p. 36-38 Title, negligence of solicitor omitting to investigate, § 45, p. 42 Toi L8, title to demand, involves duty in making and maintaining works, § 17, p. 17, &e. case of Mersey Docks, &c., v. Gibbs, § 17-19, p. 17-20 Tort and contract conceived by English lawyers as formiug distinct classes of action, § 12, p. 12 and contract, the distinction between, disregarded for the purposes of this essay, § 12, and § 12, n., p. 13 the distinction has some importance in relation to procedure, § 12, re., p. 13 Tort-feasor, child liable as, § 81, p. 70 Traffic Act, railway and canal, control- ling special contracts for the carriage of goods, § 37, p. 33 tramways, prevalence of, in streets in America, seems a reason for their im- puting negligence to persons allowing their children to be alone upon the streets, § 81, re., p. 69 Traffic Abranqements, in case of, be- tween railway companies, the company receiving the goods is liable, § 36, p. 32 Trap, owner of premises bound to warn licensee of trap known to himself, § 32, p. 29 ; § 33, p. 30 ; § 57, 58, p. 32 Trap-door negligently left open, [Chapman V. Bothwell}, § 32, p. 29 -JM. yu i/"C- Tbaps and spring guns, action for serious damage arising out of, not answered by allegalion of trespass, § 82, p. 70 Trial of cause, duty of attorney in relation to. & 46, p. 43; § 47, p. 44 Trimmings of hedges beside railway, in a vfery dry season, set fire to by passing englae and spreading fire some distance, evidence of negligence, § 78, p. 66 Turnpike Egad crossed by railway at a level (see Level Ohossings), § 29, p. 26 ; §«1, p. 28 Tyre of wheel, accident caused by break- ing of [Bedhead v. Midland By. Co.'\, § 39, 40, p. 36-38 Ultra Vires, company not responsible for act of servant ultra vires of company itself, § 66, n., p. 59 Unauthorized act of servant, master may be liable for, § 66, re., p. 59 Undertaking, gratuitous, involves a legal duty [Coggs v. Barnard], § 10, p. 10 public, duty to make and maintain, § 17, p. 17, &c. Unreasonable condition, stipulation 110 INDEX. Unreasonable — continued. against loss by negligence in carriage of goods is, § 37, p. 34 Unseaworthiness of ship held a risk inci- dent to the contract of service on board her, § 74, p. 64 [N.B. — It is a disgrace to our common law that it should be possible to assert this. While it remains un- contradicted it is useless to devise subtle means of coercion against shipowners. I have shewn that the principle on land is different, and that a person engaging another in a dangerous service(compai'e the wreck retm-ns with accidents from coal mines, fc.), warrants his mine or pre- mises to be aa safe as reasonably may be, and is bound, having regard to safety, to furnish proper and suf- ficient tackle IBrydon v. Stewart, &c.]. Possibly the Court of ultimate appeal might take » similar view with regard to shipowners. But the doubt that exists should be removed by statute.] Unusual covenant, solicitor liable for allow- ing his client to execute without ex- plaining the effect, § 45, p. 42 Valuable consideration is the criterion, shewing that ordinary negligence infers liability, § 4, p. 5 ; § 8G, p. 72 Value of subject mortgaged, not the proper duty of the solicitor to ascertain, § 45, p. 42 Vakcouver's island, saw-mill shipped for, and on arrival essential part of ma- chinery found wanting, special damage claimed disallowed as too remote, § 80, p. 68 Verbis, a division of contracts in Eoman law, § 9, n., p. 9 the words a legal solemnity, Md. Vis Major (see Casus) excuses the borf ower in commodatum, § 4, p. 6 alone will excuse for escape of dan- gerous tiling harboured on land, § 24, p. 23 Vituperative epithet, "gross" applied to ordinary negligence, § 11, p. 11 Voluntary settlement, solicitor having allowed, to be executed by a person lying in extremis, without power of revocation, disallowed his costs in a suit for setting aside the deed to which he was a neces- sary party, although he had acted tond fide, § 53, p. 47 Voyage Policy for insurance of the vessel Voyage VaLvyi-^conHnued. implies Warranty of seaworthiness, § 87 p. 35 ■Warranty. Contractor providing maU- eoach does not warrant the coach to driver employed by contractor for hors- ing the coach \Winterhottom v. TFngMl, § 12, «., p. 14 implied contract of, not distinguish- able from ground of liability implied by culpa levissima, § 13, m., p. 14 contrh omrtes mortales distinguished from warranty of reasonable care, ibid. carrier of passengers only liable in the latter kind, § 40, p. 38 of seaworthiness of vessel, an implied term in contract for carriage of goods by sea as well as in voyage policy of in- surance of vessel, § 37, p. 35 but not implied in the contract engaging the crew, § 74, p. 64 of due care on the part of a railway company over whose line the company making the contract with a passenger has running powers ; quxre, whether im- plied, § 42, p. 40, 41 where there is no, either express or implied, ordinary negligence is generally the criterion of liability, § 43, p. 41 for special purpose in contract of car- riage not implied by general knowledge, on part of shippers, of contents of pack- age \_British Columbia Saw-mill v. Nettle- ship], § 80, p. G8 that goods are safe to carry is implied by giving goods to carry for hire without giving notice that they are dangerous IBrass v. Maitland], § 88, p. 74 Warning, person bound to give, of trap on his premises, § 32, p. 29, and notes ; § 57, 58, p. 52 Weighing machine being on railway plat- form not evidence of company's negli- gence {^Blaclcman v. L. B. & S. C. By. Co.l § 41, p. 40 Welding in tire of wheel, accident caused by flaw in [Bedhead v. Midland By. Co.], § 39, p. 36 Western Bank of Scotland, action by liquidator of, against diiectors for negli- gence, § 55, p. 49 Wheel. Accident caused by breaking of tire [Bedhead v. Midland By. Co.'], § 39, p. 36 Whistle, when it is a reasonable precau- tion by a train approaching a level cross- ing, § 31, p. 28 Wilful wrong, the lowest ground of lia- bility to indemnify, § 13, m., p. 14 INDEX. Ill Wilful — continited. neglect by trustees, by ■which ad- ministration suit is rendered necessary, makes them liable for costs, § 55, a., p. 51 Witnesses, duty of attorney in seeing to attendance of, § 46, p. 43 ; § 47, p. 44 WoBKS, public, duty to make and maintain, § 17, p. 17, &c. , case of Mersey Docks, &e. v. CUhhs, § 17-19, p. 17-20 Whits, execution of, by sheriff and messen- ger-at-arms requires exact diligence, § 20, p. 21 Wronq (see Tobt) is, properly speaking, the ground of every action, § 12, p. 13 Wkonodoeb, yonng child may be liable as, § 81, p. 70 Wrongs (or torts) conceived by English lawyers as forming a distinct class of actions, § 12, p. 12 Lincoln's Inn. February 1, 1871. LONDON : • rnlNTED BY ■WILLIAM CLOWES AKD SONS, STAMFOKD STREET AND CHARING CROSS. m K ill I > ' II 'm l >i 4 ■i. cJi