Page:Harvard Law Review Volume 10.djvu/521

495 KEENER ON QUASI-CONTRACTS. 495 statutes is the so-called " spurious easement " allowed in England, whereby the owner of a parcel of land could, without a contract, call upon his neighbor in certain circumstances to maintain the fences between their lands. If the right is sustainable on theory, which seems very questionable, it imposes upon the defendant a positive, not a negative duty. It seems to be due to custom.^ As has been said, these altruistic duties involve an element of self-sacrifice, and it is doubtful if the courts have the power of their own motion to require any such sacrifice, though of course, if the state should command it by statutory enactment, the courts must afford such remedies as they can. Even the legislature, however, should be, and .is, chary of issuing such commands, and the condition of them should lie in a direct public need ; and, so far as I am aware, with the exception of the spurious easements just mentioned, the courts in English-speaking jurisdictions have never undertaken to enforce a positive duty of this character without legislative support.^ That they may recognize the exist- ence of the duty of co-operation without attempting to compel its performance is, however, quite clear. A very striking and just instance of this is the case of Henry Eckert, who tried to save a child's life at the risk of his own by snatching it from in front of an advancing train, and was killed in the attempt.^ The court rightly overruled a plea of contributory negligence in an action by his administratrix for damages. No court would have compelled him to take such a risk ; but, when it was taken, the court was compelled to recognize its high ethical character, and the conse- quent legal right to run it, when, without such a reason, it would be legally unjustifiable. There are undoubtedly other instances of the recognition or enforcement of the right to co-operation, but these will suffice to show the existence of positive duties owed by one citizen to another. So far as they are enforced by law, they constitute legal rights. Like the negative rights, of which a viola- tion is a tort, they should strictly be regarded as but instances of one unitary right. So regarded, each citizen has, under many limi- tations and circumscriptions, a legal right to co-operation. Consensual rights are almost uniformly enforced. I have pur- posely used the word consensual instead of contractual, because 1 Lawrence v. Jenkins, L. R. 8 Q. B. 274 ; s. C. 2 Gray's Cas. on Prop. 324- 2 See, however, the discussion of the nature of contribution, /^jj/", p. 506. 8 Eckert v. Long L^land R. R. Co., 43 N. Y. 502 (1871).