CHAP. XII. So also the intending vendor of land, after executing an agreement for a sale of it, holds it in trust for the intending purchaser, and a person in whose name property is bought with the money of another is trustee for that other. It is a principle of English law that a trust shall never fail for want of a trustee.

Meri

torious.

Some of the above fiduciary relations are an obvious result of the acceptance of the view expressed in the maxim, 'Iure Naturae aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem1.' Hence also the right of one who has paid money under a mistake to recover it back again, a right which in English law is expressed by saying that the causeless receiver is a 'trustee' for the mistaken payer. In this and in a multitude of similar cases the money might be recovered as having been received to the use' of the person claiming it 2.

iii. According to Roman law, a negotiorum gestor,' or person who volunteered to render some necessary service to property in the absence of its owner, had a claim to be compensated by the owner for the trouble he had taken, and the owner had also a claim for any loss which had resulted from the interference of the negotiorum gestor.' Of a similar character are the rights given by English law to the salvors of ships in distress, and recaptors of ships which have been made prize by the enemy; and to those who have supplied necessaries to persons who, being lunatics or in a state of drunkenness, were incapable of entering into an agreement. 'A contract,' it has been said, 'may be implied by law in many cases even where the other party protested against any contract. The law says he did contract because he ought to have done so. On that ground the creditor might recover against him when sober for necessaries supplied to him when

1 Dig. l. 17. p. 206; cf. Savigny, Obligationenrecht, i. p. 26.

* See the long note upon the common count for 'money had and received' in Bullen and Leake's 'Precedents of Pleadings.'

drunk ... the law makes a contract for the parties 1. "This CHAP. XII. title to indemnity,' says Bentham, 'is founded upon the best

reasons.

Grant it, and he by whom it is furnished will still be a gainer; refuse it, and you leave him who has done the service in a condition of loss. Such a regulation is less for the benefit of him who receives the compensation than for the benefit of those who need the service. It is a promise of indemnity made beforehand to every man who may have the power of rendering a burdensome service, in order that a prudent regard to his own personal interest may not come into opposition with his benevolence. Three precautions must be observed in arranging the interests of the two parties. First, to prevent a hypocritical generosity from converting itself into tyranny, and exacting the price of a service which would not have been accepted had it not been supposed disinterested. Secondly, not to authorise a mercenary zeal to snatch rewards for services which the person obliged might have rendered to himself, or have obtained elsewhere at a less cost. Thirdly, not to suffer a man to be overwhelmed by a crowd of helpers, who cannot be fully indemnified without counterbalancing by an equivalent loss the whole advantage of the service 2."

iv. Any member of the community who becomes entitled Official. by circumstances to call upon a public official to exercise his functions on his behalf, acquires thereupon a right 'in personam' against such official to that effect. This right, in so far as it is enforceable by action against the official, is a private law right. Such rights are enforced in English law against all ministerial officers, as collectors of customs, registrars of births, bishops, lords of manors, sheriffs, or postmen 3 but high officials, such as the Postmaster-General, are not

responsible for the negligence of their subordinates.

3;

1 Per Pollock, C. B. in Gore v. Gibson, 13 M. and W. 623. As to lunatics,

see Baxter v. Portsmouth, 5 B. and C. 170.

2 Dumont's Theory of Legislation, Hildreth's translation, p. 191.

9 See Ashby v. White, 1 Smith, L. C.

CHAP. XII.

In Roman law, a suitor had a right, enforceable by action, that a judge should decide his cause properly. The judge was liable si litem suam fecerit,' and this was the case when he gave a wrong decision, either corruptly, 'si evidens arguatur eius vel gratia vel inimicitia, vel etiam sordes 1,' or from ignorance, licet per imprudentiam2. According to the law of England, however, no person holding a judicial office, be he judge, juryman, coroner, or arbitrator, unless he exceeds the bounds of his authority, is liable for his judicial acts.

Special duties are sometimes imposed on particular classes of persons, in which case any individual who has a right to call for the performance of those duties possesses a right 'in personam' against the person upon whom such performance is made incumbent. Thus, according to English law, an innkeeper, having room in his inn, is bound to receive every well-conducted traveller who is ready to pay for his entertainment, and a 'common carrier' is bound to convey all suitable goods for which he has room and the carriage of which is duly paid. Duties of this sort are often created by statute. So, it having been enacted that shipowners must keep medicines on board for the crew, it was held that any sailor who suffers from a neglect of this duty may sue for the damage he has sustained 3. Under the Lands' Clauses Consolidation Act, 1845, and similar statutes, a relationship of vendor and purchaser may be constituted without the concurrence of the owner of the land, by the exercise of the compulsory powers conferred by these acts upon railway and other companies. The desirability has been suggested of recognising a right, which, if recognised, would belong to the class now under consideration, but is probably unknown to any system of law. When a person is in danger, why,'

1 Dig. v. I. 15.

2 Dig. xliv. 7. 5.

3 Couch v. Steel, 3 E. and B. 415; sed vide Atkinson v. Newcastle Waterworks Co., L. R. 2 Ex. Div. 441.

Cf. Lord Justice Fry's Specific Performance of Contracts, 2nd edit. p. 48.

asks Bentham, 'should it not be the duty of every man to CHAP. XII, save another from mischief, when it can be done without prejudicing himself, as well as to abstain from bringing it on him 1?'

The

founded on

Under the head of rights available against a definite Torts person, which person is specifically ascertained before any contract. infringement of the right, one might be tempted to place those rights the violations of which have sometimes been called in English law 'torts founded on contract.' Actions against surgeons for want of skill, against carriers for want of care, and the like, have sometimes been treated as if brought in pursuance of a right existing against persons pursuing such vocations, independently of any contract. It has been said, for instance, that the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the Company to carry him safely". simpler, and it is submitted, the truer view, would be to treat all such rights as contractual. What is called, with reference to carriers, the 'custom of the realm,' is really a term implied. by law in the contract of carriage. Any one taking a railway ticket knows, or is presumed to know, what interpretation is put by the law upon the agreement with the Company into which he enters by the simple act of taking a ticket. He knows that, in return for his money, the Company not only undertakes to put him into a train and to start it for its destination, but also undertakes by all reasonable precautions to ensure his safety during the journey. If, through the negligence of the Company, what is called an accident occurs on the road, and the passenger's leg is broken, he may fairly say that the Company is just as much guilty of a breach of their contract with him as if they had stopped

1 Works, i. p. 148.

2 Per Blackburn, J., in Austin v. Great Western Railway Co., L. R. 2 Q. B. 447.

P

CHAP. XII. their train half way, and had told him that he must accomplish the rest of the distance as best he could.

Ex Contractu.

Two senses of Contract.

II. By far the most important class of rights 'in personam' are those which arise from that particular species of act which is called a Contract.' We have already explained that acts which are directed to the production of a legal result, Rechtsgeschäfte,' may be either one-sided, when the will of one party only is active, or two-sided, when there is a concurrence of two or more wills in producing a modification of the rights of the parties concerned. Such a twosided act, having for its function the creation of a right, is a Contract,' in the widest sense of that term, in which it would include not only the creation of rights' in personam' but also assignments of property, marriage, and other transfers or creations of rights 'in rem1.'

Thus if a man goes into a shop and buys a watch for ready money, a contract has taken place. The watchmaker and his customer have united in a concordant expression of will, and the result has affected once for all their legal rights. The customer has become owner of the watch, and the watchmaker of its price, and the transaction is at an end. But suppose that, instead of the instantaneous sale of the watch, the agree

1

Supra, p. 103. So in English law contract of sale' is used to describe both a sale out and out, or, as it is sometimes described, 'a bargain and sale,' and a contract to sell. A similar ambiguity lurks in the term ' marriage contract,' which may denote either the contract of marriage, or a contract to marry hereafter. The term is sometimes employed in a very misleading manner. Thus, by 'The Married Womens Property Act, 1882,' it is provided that 'the word "contract" in this Act shall include the acceptance of a trust, or of the office of executrix or administratrix.' So it has been held that the incorporation of a College is a 'contract,' and therefore, under the Constitution of the United States, cannot be interfered with. Dartmouth College v. Woodward, 4 Wheat. 518. There is no contract to pay for the compulsory attendance of a child at school. London School Board v. Wright, 12 Q. B. D. 578. On the necessity of acceptance for complete alienation in Roman law, see supra, p. 176. In English law acceptance is not necessary. See Butler and Baker's Case, 3 Rep. 25; Thompson v. Leach, 3 Mod. 296; Siggers v. Evans, 5 E. and B. 367; Standing v. Bowring, 31 Ch. D. 283.