determinate, a person determined specifically." The duty may be to the public at large; e. g. a duty not to commit a nuisance; but in civil issues, the right to enforce this duty must reside in individuals. "Duties answering to rights which avail against the world at large are negative; that is to say, duties to forbear. Of duties answering to rights which avail against persons determinate, some are negative, but others, and most, are positive; that is to say, duties to do or perform. By most of the modern civilians, though not by the Roman lawyers, rights availing against the world at large are named jura in rem ; rights availing against persons determinate, jura in personam, or jura in personam certam. The proprietor or owner of a given subject has a right in rem; since the relative duty answering to his right is a duty incumbent upon persons generally and indeterminately, to forbear from all such acts as would hinder his dealing with the subject agreeably to the lawful purposes for which his right exists. But if I singly, or I and you jointly, be obliged by bond or covenant to pay a sum of money, or not to exercise a calling within conventional limits, the right of the obligee or covenantee is a right in personam; the relative duty answering to his right being an obligation to do or to forbear, which lies exclusively on a person determinate.” l

The expression, right in rem, is not unknown to our Anglo

every positive system of which I have any knowledge, a mere intention to forbear in future is innocent. And an intention to act in future is not imputed to the party, unless it be followed by an act which accomplishes his ultimate purpose, or by an act which is an attempt or endeavor to accomplish that ultimate purpose. In either case, the party is guilty, because the intention is coupled with an act; and with an act from which he is obliged to forbear or abstain. For, though he is not obliged to forbear from the intention, he is obliged to forbear from endeavors to accomplish that intention, as well as from such acts as might accomplish his intention directly."

must be made to this lucid exposition. If dolus is to be regarded as always implying evil intent, then no doubt the exception taken by Mr. Austin to the Roman law in this respect is correct. But in the Roman law, as will be hereafter shown, dolus, in its most general sense, means crime, and may be consistent with a reckless disregard of law, though unaccompanied by any specific intent to break any particular law. That in the AngloAmerican law malice may in such cases be inferred, has been elsewhere shown. Wharton's Cr. Law, § 712. Between the Roman law and our own, therefore, in this respect, the difference is but slight.

1 Austin's Lect. on Juris. 3d ed.

One additional exception, however, I. 47.

American law, though not ordinarily applied to the present topic. Mechanics' liens, admiralty liens and judgments, convey rights in rem, i. e. rights against all the world, so far as concerns the particular thing to which they attach. But rights in rem are not limited to property in the narrow sense of the term. Undoubtedly I possess a right in rem against all the world (requiring as a correlative duty, forbearance to molest me in such a right) in my field, or my house. But I hold a similar right in rem, sustained by similar sanctions, over any incorporeal thing I possess, such as a right of common or of way. I hold, also, a similar right in rem in my apprentice, or my child; in other words, in such cases, a right in rem in a person. So, also, I may have a right in rem in a franchise or monopoly, which right also avails against all the world. Hence we may accept as accurate Mr. Austin's classification of rights in rem: "1. Rights in rem of which the subjects" (Mr. Austin rejects the German terminology as to subjects and objects, making the subject the thing acted on)" are things, or of which the objects (the relative duties) "are such forbearances as determinately regard specifically determined things. 2. Rights in rem of which the subjects are persons, or of which the objects are such forbearances as determinately regard specifically determined persons. 3. Rights in rem without specific subjects, or of which the objects are such forbearances as have no specific regard to specific things or persons."1 4. To this may be added, as rights availing against the public at large, the right of personal liberty, security, and reputation. Each of these, in the sense in which the term is here used, constitutes a jus in rem, that is to say, a right available against all by whom it may be assailed.

§ 25. Meaning of damnum and injuria. We must remember, when we adapt the Roman law maxims of damnum and injuria, as is so often done by our judges, to our own practice, that injuria has a meaning distinct from that popularly assigned to our term "injury." Injuria is the feminine of the adjective injurius, and means, therefore, an unlawful act, or, as Pernice 2 defines it, an objective unlawfulness. From this, as this intelligent commentator well shows, is developed the idea of hurt illegally perpetrated, whether this hurt be to property or char1 Austin's Lect. on Juris. 3d ed. I. 2 Sachbeschädigungen, 27.

p. 49.

66

BOOK I.] acter. So far as concerns the actor, the language is, facere imponere inferre jacere immittere injuriam; so far as concerns the sufferer, accipere pati ferre. In the Corpus Juris the word, when juridically used, is applied exclusively to the outward act, never being used to express the relation to such act of the actor. The word, therefore, includes all quod non jure fit; that is to say, everything that is repugnant to law. If there is no such repugnancy in the concrete, there is no injuria, although in an abstract sense a law may have been violated. Thus, for instance, the actor may be acting in self-defence, or may be irresponsible, in which case, though hurt may be inflicted, there is no injuria. Of course, these qualifications are to be taken into consideration. where particular cases are to be investigated. It is with such qualifications that we are to consider the general definition of Ulpian: "Injuria ex eo dicta quod non jure fit 1 hoc generaliter, specialiter autem injuria dicitur contumelia. Interdum injuriae appellatione damnum culpa datum significatur, ut in lege Aquilia dicere solemus."

DEFINITION OF DAMNUM AND INJURIA." [§ 25.

Other passages to the same effect may be cited; but the terms of the Aquilian law are by themselves conclusive. No doubt the word is used by the jurists in a narrow technical sense, in its relation to attacks upon character; but this does not affect the principle that in a general sense whatever inflicts an illegal hurt on person and property (supposing the actor in his particular act be responsible) is an injuria. There may be therefore damnum without injuria, for the hurt may not have been perpetrated by a responsible agent, or it may have been inflicted lawfully. There can, however, be no injuria (so far as concerns civil proceedings) without damnum.2

negligence being defined to be "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 "; 2 negligence, moreover, not

2 Per Alderson, B.- Blyth v. Birmingham Waterworks Co. 11 Exch. 784. Laches has been defined to be “a neglect to do something which by law a man is obliged to do;" per Lord Ellenborough, C. J. - Sebag

being "absolute or intrinsic," but "always relative to some circumstances of time, place, or person." 1

CHAPTER II.

DIFFERENT KINDS OF NEGLIGENCE.

Distinction between diligence of expert and | Degree of negligence imputed corresponds

that of non-expert, § 26.

Roman law adopts this distinction under the

terms culpa lata and culpa levis, § 27.

Meaning of culpa lata, § 28.

Culpa levis as antithesis of the diligentia of a

diligens paterfamilias, § 30.

"Bonus paterfamilias" to be regarded as equivalent to "good business man," § 31.

Culpa levis is lack of the diligence of a good business man, specialist, or expert, § 32. Mommsen's qualification of the last given definitions, § 33.

Difficulty in applying distinction attributable to confusion in terminology, § 44. Distinction between culpa lata and culpa levis is substantial, § 45.

Importance of word "accustomed" in test, § 46.

Probability of danger to be taken in view as determining not merely the grade but the existence of negligence, § 47.

to degree of diligence exacted, with the
qualification that the utmost degree of
diligence exacted is that which a good
business man is under the particular cir-
cumstances accustomed to show, § 48.
Culpa in concreto with its antithesis diligen-
tia quam suis, or diligence exercised by
an agent in his own affairs, § 54.
Culpa levissima, § 57.

The doctrine of culpa levissima is derived not
from the corpus juris but from the
scholastic mediæval jurists, § 59.
It is rejected by the present authoritative
expositors of the Roman law, § 62.
It is practically discarded by Anglo-Ameri-
can courts, § 64.

It is incompatible with a sound business
jurisprudence, § 65.

Classification of contracts in respect to
grade of negligence, § 68.
By Mommsen, § 68.
By Hasse, § 69.

§ 26. Distinction between diligence of expert and diligence of non-expert. If the law impose in one case a degree of diligence higher than it impose in another case, then, in the first case, liability is attached to a lesser grade of negligence than in the second. That such a distinction exists between the expert and the non-expert is a necessity both of business and of jurisprudence. A cottager who has a box left at his house by a passing traveller, and who does not in any way pretend to guard the goods so deposited, is only liable when by gross negligence, e. g. by leaving the door open at night and the box exposed, the box is lost. On the other hand a common carrier, who undertakes for hire to carry the same box from point to point, but who neglects to provide a suitable carriage, is liable in case of damage to the goods for the special negligence, which consists in his failure to exhibit the diligence which a good business man should exert in his par