Page:The New International Encyclopædia 1st ed. v. 14.djvu/386

NEGLIGENCE. 336 NEGOTIABLE INSTRUMENTS. was injured by an exlraoriliiiaiy Hood. It was lield that the iiiiiiicdiate and piuxiiiiate cause of Ijlainlills loss was the llood, and that defendant's neglijjenee was too remote to render it liable. The latter had ceased to operate as an active or efficient cause before the flood came. CoxTRiiit TOKY Xegliuexce. It is really on this ground (that defendant's negligence is not the pru.iniate and efficient cause of one's injury) that the injured party is denied a recovery when lie is shown to have been guilty of contributory negligence. A single example will suHiee here: A workman is warned by his employer not to work U])on a scati'old at a certain point because it has no railing there. He does work on that part, and. forgetting the absence of a rail, steps backward, falls, and is injured. Clearly, it is the workman's negligence, not the employer's, that is the decisive cause of his harm. 15ut sup- pose. l)eing there with knowledge of defendant's negligent omission of a railing, he had been knocked from the scaffold by the fall of an object from the roof, which fall was due to defend- ant's negligence. The servant's presence at the point in question would have furnished an oppor- tunity for defendant's negligence to operate, but would not have been the cause of his injury, and he would recover. It should be noted that contributory negligence on the part of a plaintiff is not an absolute bar to recovery in admiralty (q.v. ) as it is at conunon law. It only dmiinishes his damages. Hence, whenever one has an option to sue at common law or in admiralty for the defendant's negligence, he should choose the latter jurisdic- tion. C'HiMiXAL NEfii.KiENCE. Negligence which is the proximate and ellicient cause of the death of a human being may subject one to a criminal prosecution for manslaughter (q.v.), but at common law it does not render one liable in tort. The latter rule has been changed by statute both in England and in many of our States. While this legislation varies in different jurisdictions, its principal object is to grant a cause of action on behalf of those who were de- pendent upon or financially interested in the life of the deceased, against the one wrongfully causing his death. Consult: Hcven, yrplificncc in Law (London, 18!>,5) : Shearman and Redfield, Treatise on the Law of yerilifiriirc (New York, 18!)8) : Pollock, The Law of forts (London and Xew York. l!)ni). NEGOTIABLE INSTRITMENTS (ML. «c- flttliiihilis. fidiii Lat. II' (iitt ill! i. lu negotiate, from lufiotium, business, from iirr, not + otium. leisure). Contracts in writing which are trans- ferable by indorsement or delivery, and which are enforceable by the transferee in his own name, without previous notice to the promisor, as well a- witlmut the risk of being met by defenses that would have been gooil against the trans- ferrer. Such contracts were unknown to the early common law of Kngland. By that law a contract, whether written or oral, could not be trans- ferred so as to enable the transferee to sue tipon it in his own name. He was obliged to sue in the name of the transferrer. Kquity modified this rule to the extent of allowing an assignee of a contract to sue in his own name. But, even in equity, the assignment would not bind the prom- isor until he received notice of it, and after notice he could set up all defenses against the assignee which were available to him against the assignor at the time of notice. In other words, the assignee could get no better title than the assignor had. Modern statutes have made nearly all contracts and rights of action assignable; that is, they permit the assignee to sue upon them in his own name, but he takes thcni and sues upon them subject to the defenses available against his assignor. The negotiability of certain contracts is a characteristic impressed upon them by the usages of merchants. This quality was first recog- nized and made effective by the law merchant (q.v.), whose rules u])on this were later adopted and enforced by the common law. Thus it has come about that for more than three centuries certain contracts in writing have been treated by all English judicial tribunals as negotiable, and have been contrasted with others which are only assignable. The earliest form of negotiable in- strument recognized by English law was the foreign bill of exchange (q.v.). Next in order came the domestic or inland bill of exchange, differing from the foreign bill only in the fact that it was drawn and payable within the same State or political jurisdiction. Following this came the promissory note ( q.v. ) , but its nego- tiable character was not established without a strviggle. It is true that the negotiability of this novel mercantile instrument passed unchal- lenged for a time in England, but after Lord Holt became Chief Justice he set his face against the recognition of new forms of negotiable in- struments and decided that promissory notes were not negotiable. Immediately the nu-rehants of London appealed to Parliament, and that august body enacted a statute without delay, up- holding the mercantile view and declaring promis- sory notes negotiable like bills of exchange (^ and 4 Anne, c, 9, 1704). .-Vbout this time an- other species of negotiable instruments was de- vised and came into general use — the goldsmiths' or bankers' notes. These were the i)romissor' notes of bankers, payable to bearer on demand, and originally given for money actually deposited with the maker by the one to whom they were issued. Lord Mansfield had no hesitation in treating them as negotiable by delivery. A little later the use of cheeks (q.v.) became general. For some time the legal .status of this instrument was doubtful, but it has long been recognized ns a species of bill of exchange, and is now authori- tatively defined as a bill drawn on a bank and payable on demand. The foregoing are the most common forms of negotiable paper, but several other forms have Ix-en found useful in mercantile transactions, and have received judicial approval, such as the bonds of business and tiiunicipal corporations, exchequer bills, and scrip for Government bonds. In order that a written contract may possess negotiability, it must be payable to order or to bearer and must be treated in the money market as a security for and representative of money. Ac- cordingly, billsof lading (q.v. ) .warehouse receipt-s (q.v.), and like documents of title are not neg<itiable instruments, even in jurisdictions where they are declareil by statute to l)e nego- tiable. They are not representatives of money and cannot perform the functions of currency. They are .symbols of goods, and their transferee