Bill of lading. for the goods given by the master is called the bill of Freight. lading: it states that the goods are to be delivered to the consignee or his assigns; and by the custom of merchants, the bill of lading, when indorsed by the consignee with his name, becomes a negociable instrument, the delivery of which passes the property in the goods (k); but it was formerly held that the right to sue upon the contract contained in the bill of lading to carry and deliver the goods did not pass by the indorsement (1). It is, however, now enacted, that every consignee of goods named in a bill of lading, and every indorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with himself (m). The money payable for the hire of a ship, or for the carriage of goods in it, is the freight which, whether accrued or accruing, is assignable in the same manner as any other ordinary chose in action (n). The delivery of goods imported from foreign parts, and the lien of the ship owner for their freight, are now regulated by the provisions of the Merchant Shipping Act Amendment Act, 1862 (0). (k) Caldwell v. Ball, 1 T. Rep. 205, 216. (1) Thompson v. Dominy, 14 Mee. & Wels. 403. (m) Stat. 18 & 19 Vict. c. 111, s. 1. (n) Douglas v. Russell, 4 Sim. 524; 1 M. & K. 488; Leslie v. Guthrie, 1 New Cases, 697; Lindsay v. Gibbs, 22 Beav. 522. (0) Stat. 25 & 26 Vict. c. 63, 88.66-78. PART II. OF CHOSES IN ACTION. CHAPTER I. OF ACTIONS EX DELICTO. In addition to moveable goods, or choses in possession, we have observed (a), that there existed also in ancient times choses in action, or the liberty of proceeding in the courts of law either to recover pecuniary damages for the infliction of a wrong or the nonperformance of a contract, or else to procure the payment of money due. The actions to be thus brought were, of course, not real, but purely personal actions. Real actions were brought for the recovery of land or real property; but the abovementioned actions were against persons only, and the object was merely to obtain from them money, being the only recompense then generally available. In this respect, however, the law has recently undergone some change: for the Common Law Procedure Act, 1854, now enables the plaintiff in any action, except replevin and ejectment, in any of the superior courts, to claim a writ of mandamus commanding the defendant to fulfil any duty Writ of manin the fulfilment of which the plaintiff is personally in- damus. terested, and by the nonperformance of which he may sustain damage (b). And it also provides, that in all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may claim a writ of injunction against the Writ of injunc (a) Ante, p. 4. (b) Stat. 17 & 18 Vict. c. 125, tion. ss. 68, 69; Norris v. Irish Land. Costs. licto and ex repetition or continuance of such breach of contract or other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract or relating to the same property or right (c); and the Common Law Procedure Act, 1860, requires that in the above cases the costs of the writ of mandamus or injunction shall be paid by the defendant, unless otherwise ordered by the court or a judge (d). But the rights thus given do not appear to have materially interfered with the wider and more ancient jurisdiction of the Court of Chancery in issuing an injunction to restrain the wrong-doer from continuing his wrong, or in decreeing the specific performance of a contract. By a recent statute the Court of Chancery is empowered to award pecuniary damages, either in addition to or in substitution for an injunction or specific performance (e). In many cases, however, money alone is a sufficient recompense; and then the right to bring an action at law, in other words a legal chose in action, constitutes a valuable kind of personal property. The infliction of a wrong, and the nonperformance of a contract, are evidently the two grand sources from which personal actions ought to proceed. If one man commits a wrong against another, justice evidently requires that he should give him satisfaction; and if one man enters into a contract with another, he certainly ought to keep it, or make reparation for its breach; or if the contract be to pay a sum of money, the money Actions ex de- ought to be duly paid. Personal actions are accordingly divided by the law of England into two great classes, actions ex delicto, and actions ex contractu (f). The contractu. (c) Stat. 17 & 18 Vict. c. 125, ss. 79-82. (d) Stat. 23 & 24 Vict. c. 126, s. 32. (e) Stat. 21 & 22 Vict. c. 27, s. 2; Lewers v. Earl of Shaftesbury, V. C. W., 2 Law Rep. Eq. 270. (f) 3 Black. Com. 117. former arises in respect of a wrong committed, called in law French a tort; the latter, in respect of a contract made for the performance of some action, which thus becomes a duty, or for the payment of some money, which thus becomes a debt. Let us consider, in the present chapter, the right of action which occurs ex delicto, or in respect of a tort. death of the party injured. The ancient law, in its dread of litigation, confined the remedy by action for a tort or wrong committed, to the joint lives of the injurer and the injured. If either party Maxim actio died, the right of action was at an end, the maxim being ritur cum perpersonalis moactio personalis moritur cum personâ (g). In this rule, sonâ. actions ex delicto only were included; of which, however, there seem to have been more than any other in early times. But, by an early statute (h), the same Exceptions on action was given to the executor for any injury done to the personal estate of the deceased in his lifetime, whereby it became less beneficial to the executor, as the deceased himself might have brought in his lifetime. And by a recent statute (i), an action is given to the executors or administrators of any person deceased for any injury to the real estate of such person, committed within six calendar months before his death, for which an action might have been maintained by him; so that the action be brought within one year after the death of such person; and the damages, when recovered, are to be part of the personal estate of such person. And by a still more recent statute (k), it is provided, that whenever the death of a person shall be caused by such wrongful act, neglect or default, as would (if death had not ensued) have entitled the party injured to maintain (g) 1 Wms. Saund. 216 a, n. (1). (h) Stat. 4 Edw. III. c. 7, de bonis asportatis in vitâ testatoris, extended to executors of executors by stat. 15 Edw. III. c. 5. (i) Stat. 3 & 4 Will. IV. c. 42, 8. 2. (k) Stat. 9 & 10 Vict. c. 93, amended by stat. 27 & 28 Vict. c. 95. See Pym v. The Great Northern Railway Company, 2 Best & Smith, 759. an action and recover damages in respect thereof, the wrong-doer shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. Under this act, one action only can lie for the same subject-matter of complaint; and such action must be commenced within twelve calendar months after the death of the deceased (1), in the name of his executor or administrator (m), and must be for the benefit of the wife, husband, parents, grandfather and grandmother, stepfather and stepmother, children, grandchildren and stepchildren of the deceased, in such shares as the jury shall direct (n). And if there shall be no executor or administrator of the person deceased, or, there being such executor or administrator, no action shall have been brought in his name within six calendar months from the death of the deceased, then such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been, if it had been brought by or in the name of such executor or administrator (o). Previously to this statute, a man who had been maimed by another could recover compensation for the injury; but (7) Stat. 9 & 10 Vict. c. 93, s. 3. (m) Sect. 2. (n) Sects. 2, 5. This act is a specimen of the common absurdity of modern acts of parliament, in introducing an interpretation clause in one section just to vary the meaning of another. It enacts in one section that the action shall be for the benefit of the wife, husband, parent and child; and in another section that the word 66 parent" shall include father and mother, and grandfather and grandmother, and stepfather and stepmother; and the word "child" shall include son and daughter, and grandson and granddaughter, and stepson and stepdaughter. Now the words "parent" and "child" occur only in the one place just mentioned besides this interpretation clause. Why not therefore say at once what is really intended? (0) Stat. 27 & 28 Vict. c. 95 s. 1. |