at the time of the commission of the wrong influences the question.119

Act or Omission.

It

Mere intention to do wrong is not actionable. To constitute a tort, a wrong must have been committed, but it need not be done by positive act only. A tort may also arise out of omission. "There is great distinction between an omission and an act done." 120 is sometimes said that to avoid commission of a tort, "one needs only to forbear." 121 But this is not strictly true, in the ordinary sense of "forbearance." "Diligence-the converse of negligence-may imply a forbearance to act as well as to act; 122 and on the other hand, failure to act is often the gist of liability. Thus, there may be negligence in omission as well as negligence in commission.123 The same distinction was recognized in the civil law, under the terms "culpa in faciendo" and "culpa in non faciendo." 124

or effect the conception of a personal wrong." Bowen, L. J., in Mogul v. McGregor, 23 Q. B. Div. 598. And see Chasemore v. Richards, 7 H. L. Cas. 367. 119 What is meant by the mens rea, as distinguished from the act or omission complained of, may be made clear by reference to deceit. In this wrong, inter alia, two things are to be considered: (1) defendant's state of mind, his intention to deceive, his knowledge of the falsity of representations, and the like; (2) his consequent conduct, as the lie he tells, or the truth he suppresses when he ought to speak. Correspondingly on plaintiff's part, he suffers no wrong unless (1) he believes and relies on defendant's wrong, and (2) in consequence of such mental condition acts or fails to act, whereby he is damaged. Post, p. 560, "Deceit."

120 Abbott, C. J., in Devereux v. Barclay, 2 Barn. & Ald. 702, Am. Lead. Cas. 432.

121 Aust. Jur. lect. 14, pt. 1, par. 502, p. 250; Keener, Quasi Cont. 15. A current jocular definition of negligence is: "I have done those things which I ought not to have done, and I have left undone those things which I ought to have done." And see Whart. Neg. § 24.

122 16 Am. & Eng. Enc. Law, 405, and cases cited, note 3; Underwood v. Smith, 93 Tenn. 687, 27 S. W. 1008 (libel).

123 Blyth v. Birmingham Works, 11 Exch. 781; Bramwell, J., Southcote v. Stanley, 1 Hurl. & N. 246; Gallagher v. Humphery, 10 Wkly, Rep. 664; Cotton v. Wood, 8 C. B. (N. S.) 568; Cleland v. Thornton, 43 Cal. 437; Grant v. City of Erie, 69 Pa. St. 420. Omissions not in discharge of positive duty are not subject to suit, but are so when constituting the discharge of a legal duty. Whart. Neg. §§ 82, 83.

124 Whart. Neg. § 79.

Misfeasance-Malfeasance-Nonfeasance.

The distinction of conduct as malfeasance, misfeasance, and nonfeasance was at one time a favorite one in the common law. Nonfeasance is the omission of an act which a person ought to do, misfeasance is improperly doing an act which a person might lawfully do, and malfeasance is the doing of an act which a person ought not to do at all.125 The difficulty with this distinction lies in the shadowy character of the line between misfeasance and nonfeasance, and the consequent tendency to lapse into merely a verbal rea soning. This is specially true where the not doing of a thing is wrongful, and therefore a nonfeasance becomes a misfeasance. In consequence, the tendency at the present time is to disuse the terms.126

Continuing or Completed Wrong.

Many torts consist of specific, distinct acts or omissions, which, however connected with consequential injuries, are the original, and, so far as the wrongdoer is concerned, the sole, cause of harm.127 Thus seduction cannot be repeated. If assault and battery is repeated, the second attack is a new wrong.128 Repetition of a libel may be a new publication, and give rise to a new cause of action. 125 A wrongful conduct may be said to be completed when the wrongdoer has no further control over its consequences. But a tort may be continuing. The wrong may not be distinctly separated from subsequent conduct or damages. Thus a trespass may consist of a single, simple entry by a person on another's land, after which he leaves it. If it be repeated the wrong is a new offense. Each

125 2 Vin. Abr. 35; Thompson v. Gregory, 4 Johns. 81: Six Carpenters' Case, 8 Coke, 146a; Bouv. Inst. tit. "Misfeasance"; Coggs v. Bernard, 2 Ld. Raym. 909; Bell v. Josselyn, 3 Gray, 309.

126 See liability of agent to third person for nonfeasance, post, p. 287. Liability of executive officers to third persons, post, p. 128. As to development in the law of contract, see Hare, Cont.

127 Post, p. 926, "Connection as Cause."

128 Hodsoll v. Stallebrass, 11 Adol. & E. 301. And see Fitter v. Veal, 12 Mod. 542; Lamb v. Walker, 3 Q. B. Div. 389; Lord Blackburn, in Darley, etc., Co. v. Mitchell, 11 App. Cas. 143. But see North, C. J., in Townsend v. Hughes, 2 Mod. 150.

129 Every continuance of false imprisonment is a new imprisonment. Hardy v. Ryle, 9 Barn. & C. 603. And see Dusenbury v. Kielly, 58 How. Prac. 286.

new wrong gives a new cause of action. This may also be true of nuisance.130 But if a trespasser 131 erect a permanent structure on another's land, or a person create a permanent nuisance,1 132 the tort may, under some circumstances, be continuing, and the right of action will correspond.133

HOW LIABILITY FOR TORTS MAY BE ATTACHED TO

DEFENDANT.

13. Conduct may attach liability in one or more of five ways, namely:

(a) By personal commission;

(b) By consent or command;

(c) By virtue of relationship;

(d) Because of instrumentalities; and

(e) Because of conduct operating essentially as estoppel.

Personal Commission.

Where wrongs are committed by a man in person, as where one man assaults, slanders, or imprisons another, or trespasses upon or takes the property of another, or carelessly does him harm, the tort is properly his own. It makes no difference, so far as the mere fact of liability is concerned, whether he committed such wrongs by himself, or in conjunction with third persons. But it may be very material to the extent and character of his responsibility whether he acts jointly with such other persons, accidentally or independently, or whether he and they co-operate by agreement, or in any form of concerted action. Indeed, while it was originally said that what one man may do lawfully by himself any number of men may properly do together, it is now open to at least serious question whether

130 Hopkins v. W. P. R. Co., 50 Cal. 190–194; Baldwin v. Calkins, 10 Wend. 167.

131 Kansas P. R. Co. v. Mihlman, 17 Kan. 224, 4 Cent. Law J. 108. Post, p. 407, "Continuing Trespass."

132 Whitehead v. Hellen, 74 N. C. 679; Schlitz Brewing Co. v. Compton, 142 Ill. 511. Post, p. 410, "Continuing Nuisance."

138 Whitehouse v. Fellowes, 10 C. B. (N. S.) 765, 30 L. J. C. P. 305.

the mere joinder in action of a number of men in doing what one might legally do by himself is not actionable.134

Consent or Command.

"Qui facit per alium, facit per se," is a maxim which, in the law of torts, has created much confusion. In its simplest application thereto, it expresses a manifest truth,-that whoever commands the commission of a wrong by another does that wrong himself, not by actual, personal commission, but by constructive identity. If the command or consent to the tort is prior to the wrong complained of, he may be said to have authorized it. It will appear, however, that some torts are not, in their nature, susceptible of being committed by deputy, as the wrongs of seduction and slander. The command or consent which makes another's tort one's own may be subsequent to the wrong. It is then called "ratification" or "adop tion." What ratification or adoption attaches liability for another's tort will, for sake of convenience, be presently discussed in this chapter, at some length.

Relationship.

When, however, the maxim, “Qui facit per alium, facit per se," is applied beyond this primary meaning, to cases where liability may be independent of consent or command, there is much confusion. In many jurisdictions now, and always at common law, the husband was held liable for the torts of his wife.135 Here the civil responsibility followed from the relation existing between them. There might or might not be consent on his part. If there was, the tort would properly be his actual wrong; if not, it would be his by construction only. In the same way, the negligence of a parent in exposing a very young child, incapable of negligence, to danger, is sometimes attributed to the child. And there are other recog nized cases of vicarious negligence.1 There are many cases, however, in which the courts have confused the liability which is based on consent or command and the liability which follows from a relationship to which recognized responsibilities are attached. If a master assists a servant in an assault, they are actual joint

134 Post, p. 637, "Conspiracy."

135 Post, p. 216, "Husband and Wife."

136

136 Post, p. 980, "Negligence," "Vicarious Negligence."

tort feasors. If he commands his servant to assault, they are constructively joint tort feasors. This is also true when he directs his servant to do something which necessarily or naturally involves an assault. But when a servant, contrary to orders, and without the knowledge of the master, assaults, for example, the master's customer or the master's passenger, the master is sometimes held responsible, not because the tort is really his, but because of the relationship he bears both to the servant and to the injured man. If he sustains no relationship to the complainant which imposes on him a duty which his servant violates, there is no responsibility. Instrumentalities.

Whoever uses, owns, or controls things which are in themselves dangerous, as a wild beast, or which may become dangerous in fact, as an engine, may become liable for harm done by such instrumentalities. The principles upon which liability is attached are not in entire harmony, but all agree that liability under some circumstances may attach for the harm they produce. Mr. Innes has made a valuable contribution to the law of torts in emphasizing the proposition that an instrumentality may be personal or impersonal. The personal instrumentality may be rational or irrational.137 The im personal instrumentality may be animate, as an animal of wild or domestic nature, or inanimate, as a ponderous article, a weapon, an explosive, or a thing of motion.138 Now, where a dangerous impersonal inanimate instrumentality-for example, a torpedo-does damage by the unauthorized act of a servant, there is great, and it would seem unnecessary, confusion in tracing civil responsibility for the wrong. Liability because of relationship of master and servant is one consideration; liability because of instrumentality is another and distinct one. Even the most apparently innocent things, like real estate, may become instrumentalities of harm. Again, it is insisted that deceit is not the wrong of which the party injured complains, but merely the instrumentality by which the wrong is caused.140

137 A master may be held liable for the torts of his lunatic servant. Cole v. Nashville, 4 Sneed (Tenn.) 162.

138 It is said in an early case that, "where one has filth deposited on his premises, he whose dirt it is must keep it that it may not trespass." See Tenant v. Goldwin, 1 Salk. 360.

140 That the deceit is not the injury itself, but merely a piece of conduct of