stitutes contributory negligence on his part, so as to prevent his recovering (o).

children, &c.

The doctrine of contributory negligence applies The doctrine of contributory equally to a person not competent of taking care of negligence himself-e.g., a young child-as to an ordinary person; applies to for though he himself may not have the capacity to be guilty of what can be styled negligence, yet he is identified with the person whose duty it was to have taken care of him, and who has accordingly been guilty of negligence (p).

his master.

And in the same way that a master is liable for the The contributory negligence negligence of his servant, under the maxim, Qui facit of a servant will be the per alium facit per se (q), so the contributory negligence contributory of the servant will be the contributory negligence of negligence of the master, and prevent him from recovering (r). There are some cases which go to shew that this principle applies to the case of an injury happening to a person being conveyed in some vehicle-e.g. a train or stage-coach-and that such person is so identified with the driver of the vehicle, that if the injury to him has occurred through the contributory negligence of such driver, it is the same as if it had been his (the passenger's) negligence, and that therefore he cannot recover (s); but it must at any rate be considered as rather doubtful whether this is really the law (t).

The doctrine of contributory negligence does not The doctrine of contributory apply to ships, as to which the rule of the Admiralty negligence

(0) Clayards v. Dethick, 12 Q. B. 439; Thompson v. North Eastern Ry. Co., 31 L. J. (Q. B.) 194.

(p) Singleton v. Eastern Counties Ry. Co., 7 C. B. (N.S.) 287; Abbot v. Macfie, 33 L. J. (Ex.) 177; Mangan v. Atterton, L. R. 1 Ex. 239. (9) Ante, p. 368.

(r) Child v. Hearn, L. R. 9 Ex. 176; Armstrong v. Lancashire, &c., Ry. Co., L. R. 10 Ex. 47.

(8) Thorogood v. Bryan, 8 C. B. 115; Bridges v. North London Ry. Co., L. R. 6 Q. B. 377.

(t) See The Milan, 31 L. J. Adm. 105; and see the cases quoted in the note to Ashby v. White, 1 S. L. C. 315, 316, and the reasoning upon the subject there. See also Addison on Torts, 26, 27.

does not apply to ships.

The doctrine of contributory negligence is founded on the maxim,

Volenti non fit injuria.

Court has always been that if both vessels are in fault (u), the damage done is to be divided between them (x); and the Judicature Act, 1873, although uniting the former courts into one, expressly provides that in this respect the Admiralty rule shall still prevail (y). This rule of the Admiralty Court is, however, to a certain limited extent superseded by the provisions of the Merchant Shipping Act, 1873 (z), which enacts (a) that if in any case of collision it is proved to the Court before whom the cause is tried that any of the regulations for preventing collision contained in or made under the Merchant Shipping Acts, 1854 to 1873, have been infringed, the ship by which any such regulation has been infringed, shall be decreed to be in fault unless it is shewn to the satisfaction of the Court that the circumstances of the case made departure from the regulation necessary.

The doctrine of contributory negligence seems to be founded and to proceed upon the maxim, Volenti non fit injuria.

(u) As to when a vessel will be deemed in fault, see 17 & 18 Vict. c. 104, ss. 295, et seq., and 25 & 26 Vict. c. 63, 8. 25.

(x) See Addison on Torts, 574

(y) 36 & 37 Vict. c. 66, s. 25 (9).
(z) 36 37 Vict. c. 85.

(a) Sect. 17.

PART III.

OF CERTAIN MISCELLANEOUS MATTERS NOT
BEFORE TREATED OF.

CHAPTER I.

OF DAMAGES.

THE subject of Damages has in the preceding pages
been now and then casually mentioned, and in the pre-
sent chapter it is proposed to give it such special notice
as the scope of the present work admits of
consider the subject in the following order:

1. Damages generally.

2. The measure of damages generally.

3. Damages in some particular cases.

We will Mode of con

sidering the subject.

generally.

1. The main object of an action is generally to recover 1. Damages compensation for the injury complained of, that is to say, compensation in respect of some alleged breach of contract or for some alleged tort, and this compensation is called damages. Damages, therefore, have been Definition of rightly defined as a pecuniary compensation, recover- damages. able by action, for breach of contract or in respect of a tort (b).

the term

between

Damages may be either liquidated or unliquidated. Difference By liquidated damages is meant compensation of a fixed liquidated and amount agreed and decided on between the parties; by unliquidated unliquidated damages is meant compensation not so agreed and decided upon, but remaining yet to be ascer

(b) Brown's Law Dict. 158.

damages.

Persons may agree what shall be

tained by the means pointed out by law, i.e., ordinarily by a jury. Thus if one person buys goods of another, and agrees to pay a certain price for them, which he neglects to do, this is a case of liquidated damages, for the parties have agreed on the amount to be paid, which is fixed and certain; but if in such a case the person agreeing to supply the goods neglects to do so, the buyer here has a claim for damages of an unliquidated nature, to be estimated and ascertained by the proper tribunal according to the rule or measure of the damages suffered; and so also it is the same in all actions of tort, such as libel, slander, and the like, here the person has a claim for unliquidated damages.

But in the case above mentioned of breach of a contract to supply goods the parties may and sometimes do the damages. at the time of entering into the contract, consider the

possibility of a breach happening, and provide what shall be the compensation or amount of damages to be paid to the injured party. If this is done, and there is an agreement on breach to pay a certain sum actually by way of agreed and liquidated damages, then that amount But the Court is recoverable (c). In any such case as this, however, the Court looks at the contract with great care, and the sum agreed the mere fact that the parties have stipulated that on breach a certain sum shall be paid by way of

will look to

see whether

to be paid is

really liqui-
dated damages,
or by way of
penalty, and
if the latter,
will not

enforce it.

compensation by the one to the other, will not always entitle that other to recover the exact amount, and this even although the parties may expressly stipulate that the amount agreed to be paid shall be by way of liquidated damages, for in many such cases the sum agreed to be paid may really be a penal sum, and if it is so, then the Court will not enforce it, but will relieve against The Court, in it (d). The Court, in doing this, does not at all interfere with the power that persons naturally must have

doing this,

looks to the true intent

of the parties.

(c) Price v. Green, 16 M. & W. 346; Hinton v. Sparks, L. R. 3 C. P. 161; 37 L. J. (C.P.) 8.

(d) Kemble v. Farren, 6 Bing. 141.

Farren.

of estimating their own damages, but what it does is to look to the real and true intention of the parties (e), not being bound down by the mere words used by them, but looking at the whole instrument to arrive at the true construction. Thus in the case already quoted of Kemble v. Farren (f) the defendant had en- Kemble v. gaged with the plaintiff to perform as a comedian at the plaintiff's theatre for a fixed time at a certain remuneration, and it was mutually agreed that if either of the parties should neglect or refuse to fulfil the agreement, or any part of it, such party should pay to the other the sum of £1000, which was thereby declared between the parties to be liquidated and ascertained damages, and not a penalty or penal sum or in the nature thereof. Yet the Court held that the stipulated sum of £1000 was in the nature of a penalty, and therefore not recoverable, but unliquidated damages only were recoverable. It was indeed but a penalty in the disguise of liquidated damages, for it was to be paid on breach equally by either party, and it was evident that had the breach been by the plaintiff the true damage sustained by the defendant would have been the fixed remuneration he was to be paid during the time agreed upon, and not such a sum as this. Had this sum been stipulated to be paid only on breach by the defendant, then, as his breaches were of an uncertain nature and amount, the stipulation would no doubt have been construed as liquidated damages and good, for the rule has been laid down that where the damage is entirely uncertain, and the parties agree on a definite sum by way of liquidated damages, then that sum will be so construed and will be recoverable (9).

(e) Per Keating, J., in Lea v. Whitaker, L. R. 8 C. P. 73. (f) Kemble v. Farren, 6 Bing. 141, ante, p. 392.

(g) Per Coleridge, J., Reynolds v. Bridge, 6 E. & B. 541; Mercer v. Irving, 27 L. J. (Q.B.) 291. See further as to when a provision will be construed to be in the nature of a penalty, Protector Endowment Loan Co. v. Grice, L. R. 5 Q. B. D. 596; 49 L. J. Q. B. 812; 43 L. T.