tion to cases, whether with servants or the public, in which the master had been wanting in due and reasonable precaution. But it is too late to raise any such question. The fiction, if it be one, is firmly found fixed in the law, and was found to be part of our own system by the House of Lords in the Bartonshill case; and it is settled that a servant cannot make his master responsible for injury arising from the wrong of a fellow-servant, because, by his own contract with the master, he has barred himself from doing so. From this it follows that no one but the employer can plead the benefit of the contract, and the only question remaining on this head is, whether the deceased was employed by the Glasgow and South-Western Company.

I am of opinion that the deceased was employed solely by the Caledonian Company; and that the fact that the latter had the right of running over the rails of the former, and was subject to the rules of the former in doing so, had no more effect in making the deceased the servant of that Company, than the use of a private wharf or pier, or a private road, would convert the persons using it into servants of the proprietor. It would be a hardship on railway companies to impose on them liability for the servants of all the companies or traders who use their line. But the case of Calder v. Caledonian Railway Company (June 16, 1871, 9 MP., 833), in which the running powers were precisely the same as in the present case, is conclusive on this point.

On the second point I am of opinion that the engine-driver and the guard of the Caledonian train were guilty of negligence which contributed to the death of the deceased. Understanding from Lord Young that the opinion of the jury was not intended to operate as a verdict, I have no hesitation in coming to an opposite conclusion. The engineman and the guard were both aware that it was the duty of the stationmaster to exhibit the train staff to them before giving them a ticket to proceed, and that he was not entitled to allow the train to proceed without doing so. The rules, which are admitted to have been in their hands, make that clear; and although the injunction on them to see the train staff before proceeding might have been more directly expressed, there could have been no reasonable doubt on their minds as to what their duty was. To hold otherwise would be to remove all security for the safety of the public.

It

On the third ground, two separate views are submitted. was maintained, in the first place, that the contributory negligence of the fellow-servant is equivalent to the contributory negligence of the deceased himself; and secondly, that this would have been the case even if the deceased had been a passenger.

On the first view I am of opinion that it is entirely untenable. It proceeds on the idea that on some unexplained ground a servant is liable for the wrongful acts of his fellow-servant. But the doctrine I have been considering implies the reverse. The fact that a

fellow-servant did, or contributed to do, the wrong liberates the master; but it does not liberate the fellow-servant, who remains liable for his wrongful act; and still less can it liberate a stranger who participated in the wrong. In no view which can be plausibly stated can the injured man be responsible for the acts of a fellowservant with whom he has no contract, nor can these free from responsibility a third party with whom he had not only no contract, but no relations. Culpa tenet suos auctores, and if this action had been directed against the station-master, he never could have been heard to maintain that he was not liable for his own wrong because a fellow-servant of the deceased was also liable.

The proposition maintained by the defenders on this head, as I understand it, is the following:-That if in the execution of a contract of carriage between a public carrier and a passenger, the passenger be injured through the joint fault of the carrier and a third party, the passenger has no right of action against the third party, who is to escape altogether, because the carrier and the passenger are in law identical, and are responsible for the acts of each other; and the passenger thus caused or contributed to his own injury.

On any principles or analogies with which we are familiar, the mere enunciation of such a proposition would be sufficient to refute it; but we have been referred by the defenders to the case of Thorogood v. Bryan, in the English Common Law Courts (8 C. B. 115), and the recent case of Armstrong v. Lancashire and Yorkshire Railway Co. (10 L. R. Ex. 47), as giving it sanction. The case of Thorogood was this-It was an action by a passenger in an omnibus against the proprietors of another omnibus in order to obtain reparation for a collision which took place between them in the course of transit. It was pleaded for the proprietors of the omnibus-and the plea was sustained by the Common Law Court --that in respect that the driver of the omnibus in which the plaintiff was had been in fault also, and as the plaintiff, being a passenger, was identified with the driver of the omnibus, he was guilty of contributory negligence, and therefore could not obtain reparation. Now, that is the proposition which is given effect to in Thorogood's case and is pleaded here; and I am far from saying that if we were to follow that precedent and hold it sound it is not directly applicable. I have read these cases attentively, and certainly the opinions in the case of Thorogood affirm the proposition I have stated to its full extent. But before we can be expected to follow the opinions of English judges, entitled and certain to receive at our hands deserved respect, we must have something more than mere judicial asseveration for our guidance-some intelligible principle- some foundation in law and reason support of the rule. After carefully examining this case of Thorogood, I entirely sympathise with the surprise expressed by Dr. Lushington (in the case of the Milan, 31 Law Journal Reports,

in

P. M. & A. 105) at the judgment itself, and the inability which that great lawyer felt to comprehend the grounds on which it proceeded. It has not been received with favour by the profession in England, as the significant passage in Smith's Leading Cases (1, 266) sufficiently shows, but as the Judges in the recent case of Armstrong certainly expressed approval of it (although their remarks were obiter), and the scope of the principle or rule is very wide, it may be right to examine the matter closely, and ascertain to what amount of authority the decision is entitled.

The ground, such as it is, on which the judgment in Thorogood's case is defended by the Judges who pronounced it, as far as I can understand it, is the supposed identity in law between the carrier and the passenger, and I presume that identity holds in every contract of carriage, and makes the passenger or the customer liable for the wrongful acts of the carrier. No stronger expression could be used to imply mutual responsibility than identity. The persons, that is to say, are one and the same, and the acts of one are the acts of the other, as if they had been master and servant or principal and agent. But this is merely the rule of "qui facit per alium, facit per se" in a very questionable, and indeed, as with deference I think it, extravagant application of it. The very maxim which it taxed the ingenuity of Courts to abridge, when the effect was to shelter the master from responsibility for the acts of his servant, is now revealed in this shape, with the effect of protecting the actual wrong done from the legitimate consequences of his own wrong.

If it be true that the wrongful act of the carrier is constructively and by imputation the wrongful act of the passenger, it necessarily follows that, whenever a third party is injured in the course of the execution of the carrier's contract by rail, every passenger in the train is liable to make reparation to the person so injured, propter quod fecerunt per alium, because being identical with the carrier, and responsible for his wrongful acts, they did, or contributed to, the injury.

I am quite aware that the Judges in Thorogood's case had no intention of giving any countenance to such a demand. But I see not how it is to be avoided, excepting on the assumption, which is manifestly true, that the passenger is not identified with the carrier, and is not responsible for what he does. I can only infer that the identity spoken of is not to be understood as a complete legal identity, but that the term is used in a popular sense, sufficient to exclude the action, but not capable of being, nor intended to be, carried out to all its other legitimate and logical results.

The question whether the passenger contributed to the injury is a matter of fact which cannot be partially true and partially false. But is there any ground for holding it to be true in any sense? It seems clear to me that the element which is essential to the application of the maxim qui facit per alium, facit per se is entirely absent in the relation

of carrier and passenger, namely, the element of authority and control. No man can be responsible for the acts of another who has no authority over him. The contract of carriage is a branch of the contract locatio operis, and has well-known incidents and obligations. The carrier is bound to carry the passenger safely, and if he fails so to do, he is guilty of a breach of contract. The passenger is bound to pay the fare contracted for, and there the legal relation ends. There is beyond this no more identity between them than exists between a Liverpool trader who commissions and the Clyde shipbuilder who builds a ship, or between an English railway company which orders and the manufacturer at Carron who constructs a boiler. They are independent parties to a contract, and neither has control nor authority over the other.

It was suggested in one of these cases that the carrier might be considered as the agent of the passenger. I do not think he might be so considered, unless in law he is the agent of the passenger; and he is not the agent of the passenger. There is contract of principal and agent between the parties, and no such relation is implied in the contract of carriage. The carrier does not act on the passenger's authority, but on his own. He runs his public vehicle at his own pleasure, at such time, in such places, and in such manner as he thinks fit. If these things form part of his contract, he must fulfil them; but he is in no respect subject to the passenger's orders or direction. It follows therefore that the carrier is not the agent of the passenger.

No doubt, although the contract of carriage does not imply any mutual responsibility for the acts of those who are parties to it, either may so act as to be participant in the wrongful acts of the other. The passenger may trust himself to a driver whom he knows to be intoxicated or incapable; he may sit beside the driver and take the reins; he may bribe the driver to drive at a dangerous pace; and in many other ways may contribute to his own injury or that of another. But his liability for such acts will be direct, and will depend on his own delict. As long as he himself acts under his contract, he has no responsibility for those who are employed to convey him.

It was suggested in the case of Thorogood that the passenger selected the vehicle in which he chose to travel, and therefore became responsible for the wrongful act of the driver. I do not know what virtue there may be in the term "selected," but I suppose the same thing may be said of every man who uses a public conveyance. Selecting the vehicle only means that he used it; and how the use of a public conveyance by a passenger should be a wrongful act I am quite unable to understand.

I am therefore of opinion that our judgment must be for the pursuer, with the sum of £300 of damages, as found by the jury.

39

REVISION OF THE STATUTE LAW.

We refer our readers to an article in our Volume for 1864 (p. 484) on the labours of the Commission on this important sphere of legislative action. We there stated a distinction which existed between English and Scotch law. The former requires express repeal of statutes, though they be in non-observance for ages long past. Our law, on the contrary, with greater propriety, allows statutes to cease by long desuetude or contrary action. It was certainly strange to learn, from the labours of the Commission, for the first time that certain laws were said to have been in observance up to the year 1861 such as that "No shoemaker shall be a tanner, nor any tanner a shoemaker;" that "Irishmen and Irish clerks shall depart from the realm;" "that for the benefit of archery, the price of longbows shall not exceed 3s. 4d., under a penalty of 20s. ;" "that the six clerks in Chancery may marry," with many similar enactments of long-forgotten usages. The still more remarkable of the series then dealt with by the Commission were statutes which had not merely fallen into desuetude, but which, from the limit of time for their operation, could of necessity be no longer operative. Take, for example, an Act passed three centuries ago, but which was only to endure for twenty years, and another of the same antiquity, declaring that it was to endure "to the end of the first session of Parliament, and no longer." How such temporary Acts of Parliament in this distant age required to be repealed is somewhat selfcontradictory.

The statute which formed the subject of our article in 1864 was the 26th & 27th Vict. c. 125 (1863). It was, we believe, the first instalment of the labours of the Commission. The preamble sets forth that "it is expedient that certain enactments (mentioned in the schedule to this Act) which have ceased to be in force otherwise than by express and specific repeal, or have by lapse of time and change of circumstances become unnecessary, should be expressly and specifically repealed." This Act only extended to England, and commenced with the reign of Henry III., and extended to that of James II. of England. It is somewhat startling to find in the view of the Commissioners that an Act of the English Legislature in the reign of James I., and when the Crowns had first become united, had remained unrepealed until 1863, intituled "An Act for the utter abolition of all memory of hostilitie, and the dependence thereof, between England and Scotland, and for the repressing of occasions of discord and disorders in time to come"!!

The labours of the Commission do not again appear in the Statute Book until 1867, unless they were the recommenders of the ill-favoured Statute of the 28th Vict. c. 33 (1865), designated "An Act to repeal the Act of the Parliament of Ireland of the sixth year of Anne, chapter II., for explaining and amending the several