of contract, whether or no it be the cause of any actual loss., CHAP. XIII. 'Direct,' or 'general,' damages are those which are the Damages. necessary and immediate consequence of the wrong, while 'indirect,' or 'special,' damages are sometimes granted in respect of its remoter consequences 1.

What has been said as to the difficulties attending the Transfer. transfer of antecedent rights 'in personam' applies, with greater strength, to the transfer of remedial rights 2. The non-transferability to the representatives of a deceased person of such remedial rights as arise from the violation of a right intimately connected with his individuality is expressed by the maxim, 'Actio personalis moritur cum persona3.'

tion.

A mere performance of the duty antecedently owed is no Extincdischarge of the remedial right arising from its non-performance, but the right may be extinguished in a variety of other ways, including some of those which are applicable to the extinction of antecedent rights in personam *.'

i. The person of inherence may formally release his right Release. of action, for instance by deed or by the Aquilian stipulation; or may give a covenant not to sue, 'pactum de non petendo ;' or may enter into, what is called in English law, 'an accord and satisfaction' with the person of incidence, i.e. into an agreement substituting some other act for the act which has not been performed, and followed by the performance of that act. The person of inherence may also by his conduct so Ratifica'ratify' a wrong done to him as to waive his resulting right of redress, as when the owner of goods wrongfully sold treats the sale as lawful by taking part of the purchase money. The right may likewise be lost by

ii. The bankruptcy of the person of incidence.

iii. Set-off.

1 On the 'measure of damages,' cf. 'pretia rerum non ex affectione singulorum, sed communiter fungi.' Dig. ix. 2. 33.

tion.

Bank

ruptcy.

Set-off.

Supra, pp. 132, 253.

Cf. supra, p. 256.

* Supra, p. 256.

CHAP. XIII.

Merger.

Estoppel.

Prescrip

tion.

iv. Merger. It has been laid down that the giving of a covenant in the place of a simple contract does not 'merge or extinguish the debt, but it merges the remedy by way of proceeding upon the simple contract. The intention of the parties has nothing to do with that. The policy of the law is that there shall not be two subsisting remedies, one upon the covenant and another upon the simple contract, by the same person against the same person for the same demand1.' So a judgment in favour of the plaintiff is 'a bar to the original cause of action, because it is thereby reduced to a certainty and the object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of attaining the same result. Hence the maxim Transit in rem iudicatam . . . . The cause of action is changed into a matter of record, which is of a higher nature, and the inferior remedy is merged in the higher. So in Roman law an obligation was transmuted by 'litis contestatio,' and again by judgment, which was expressed by saying, 'ante litem contestatam dare debitorem oportere, post litem contestatam condemnari oportere, post condemnationem iudicatum facere oportere 3.' award under arbitration does not usually extinguish a remedial right, unless followed by performance of the award.

...

An

The

v. 'Estoppel,' by a judgment for the defendant. facts actually decided by an issue in any suit cannot be again litigated between the same parties, and are evidence between them, and that conclusive, for the purpose of terminating litigation *.'

vi. Extinctive prescription, or limitation of actions, introduced, as it is expressed in the Act of James I, 'for quieting of men's estates and avoiding of suits 5,' by depriving the remedial right of its judicial remedy, reduces it to the position

1 Price v. Moulton, 10 C. B. 561.

2 King v. Hoare, 13 M. & W. 494.

3 Gai. iii. 180.

5 21 Iac. I. c. 16.

• Boileau v.

Rutlin, 2 Ex. 665; cf. Dig. xliv. 2. 7. 4.

of a merely 'natural' obligation, which however still remains CHAP. XIII. capable of supporting a lien or pledge1.

The lapse of time necessary to produce this result varies very widely in different systems, and with reference to rights of different species. It begins to run from the moment when the remedial right comes into existence, in other words, when the antecedent right is violated. It may be interrupted, or prevented from running by various causes, such as the minority, imprisonment, or absence from the country of the person whose right would otherwise be affected by it. On the other hand, the person who would otherwise benefit by it may keep alive his indebtedness by such acts as part payment, or payment of interest, or express acknowledgment with a promise to pay.

sion.

There are cases in which a remedial right is suspended Suspenwithout being lost. Thus a Court will refuse to try an action while an action to try the same question is pending before a Court of concurrent jurisdiction, in which case there is said to be 'lis alibi pendens.' So also it is a principle of English law that when the fact which gives rise to the remedial right amounts also to a felony, the remedy of the injured individual is postponed to the punishment of the crime.

Supra, pp. 187 n, 198.

T

Normal and abnormal persons.

CHAPTER XIV.

PRIVATE LAW: ABNORMAL.

AMONG the modes in which the field of law may be mapped out, we have already explained that which divides it into 'normal' and 'abnormal;' the former kind of law dealing with rights as unaffected by any special characteristics of the persons with whom they are connected, the latter kind dealing with rights as so affected1. In all statements with reference to rights the standard type of personality is assumed, unless the contrary is expressed; and it is only when there is a deviation from that type that the character of the persons who are two of the factors into which, as we have seen, it is possible to analyse every right, needs any investigation. The typical person, who is thus assumed as a factor, is, in the first place, a human being, as opposed to what is called an artificial person?.' In the next place, he is unaffected by any such peculiarity as infancy, coverture, alienage, slavery, and so forth.

In considering the various classes of substantive rights, we

have hitherto treated of them as normal. We are now about CHAP. XIV, to treat of the effect produced upon them by abnormity of personality.

persons.

It was usual in old grammars to explain the cases of nouns Abnormal by a diagram, in which the nominative case was represented by an upright line, from the base of which lines, representing the genitive, dative, accusative, vocative, and ablative, sloped off at gradually increasing angles. The accompanying figure may serve to illustrate in a similar manner the variations of juristic personality.

Normal person,

infant,

feme covert,

convict,

lunatic,

&c.,

Artificial person.

and arti

The most marked distinction between abnormal persons is Natural that some are natural, i.e. are individual human beings, ficial. while others are artificial, i. e. are aggregates of human beings, or of property, which are treated by law, for certain purposes, as if they were individual human beings 1.

persons.

I. It is by no means at the discretion of any aggregate of Artificial human beings so to coalesce as to sustain a single personality. In the words of Gaius, neque societas, neque collegium, neque huiusmodi corpus, passim omnibus habere conceditur: nam et legibus et senatusconsultis et principalibus constitutionibus ea res coercetur 2 Artificial persons have generally been created by a charter granted by the executive authority in a

1 Supra, pp. 81, 120. Order lxxi. under the Judicature Acts provides that the word 'person' shall, in the construction of the rules, unless there is anything in the subject or context repugnant thereto, include a body corporate or politic.

2 Dig. iii. 4. 1. pr.