the consequences. The old-fashioned distinction between mala prohibita and mala in se is long since exploded. The simple omission, after notice, to perform a legal duty, may be a wilful offense within the meaning of a penal statute (c). As a matter of general policy, there are so many temptations to neglect public duties of all kinds for the sake of private interest that the addition of this quasipenal sanction as a motive to their observance appears to be no bad thing. Many public duties, however, are wholly created by special statutes. In such cases it is not an universal proposition that a breach of the duty confers a private right of action on any and every person who suffers particular damage from it. The extent of the liabilities incident to a statutory duty must be ascertained from the scope and terms of the statute itself. Acts of Parliament often contain special provisions for enforcing the duties declared by them, and those provisions may be so framed as to exclude expressly, or by implication, any right of private suit (d). Also there is no cause of action where the damage complained of" is something totally apart from the object of the Act of Parliament," as being evidently outside the mischiefs which it was intended to prevent. What the legislature has declared to be wrongful for a definite purpose cannot be therefore treated as wrongful for another and different purpose (e).

Duty of respecting property. As to the duty of respecting proprietary rights, we have already mentioned that it is an absolute one. Further illustration is reserved for the special treatment of that division of the subject.

Duties of diligence. Then we have the general duty of using due care and caution. What is due care and caution

(c) Gully v. Smith (1883) 12 Q. B. D. 121, 53 L. J. M. C. 35.

(d) Atkinson v. Newcastle Waterworks Co. (1877) 2 Ex. Div. 441, 46 L. J. Ex. 775.

(e) Gorris v. Scott (1874) L. R. 9 Ex. 125, 43 L. J. Ex. 92; Ward v. Hobbs (1878) 4 App. Ca. 13, 23, 48 L J. Q. B. 281.

under given circumstances has to be worked out in the special treatment of negligence. Here we may say that, generally speaking, the standard of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence.

Assumption of skill. Moreover, if the party has taken in hand the conduct of anything requiring special skill and

Assumption of skill. In the United States the rule is somewhat stricter than in England, that persons who hold themselves out to the world as possessing skill and qualifications in their respective trades or professions are bound to reasonable skill and diligence in the performance of their duties. Citizens Loan F. & S. Assn. v. Friedly, 123 Ind. 145, following Waugh v. Shunk, 20 Pa. St. 130, citing Watson v. Muirhead, 57 Pa. St. 161; United States Mortgage Co. v. Henderson, 111 Ind. 34. See McCandless v. McWha, 22 Pa. St. 261.

A majority of the authorities upon this subject relating to special classes of persons are collated as follows:

Agents. Varnum v. Martin, 15 Pick. 440; Williams v. Higgins, 30 Md. 404; Harriman v. Stowe, 57 Mo. 93; Myles v. Myles, 6 Bush. 237; Evans v. Watrous, 2 Port. 205; Holliday v. Kennard, 12 Wall. 254; Howard v. Grover, 28 Me. 97; 48 Am. Dec. 478; Leighton v. Sargent, 7 Fost. 460; 59 Am. Dec. 388; Milwaukee Bank v. City Bank, 103 U. S. 668; Webster v. Whitworth, 49 Ala. 201; Long v. Morrison, 14 Ind. 595; Wood v. Clapp, 4 Sneed (Tenn.), 65; Patten v. Wiggin, 51 Me. 594; Matthews v. Fuller, 123 Mass. 446; Gilson v. Collins, 66 Ill. 136; Fay v. Strawn, 32 Ill. 295; Gettins v. Scudder, 71 Ill. 86; Whitney v. Martine, 88 N. Y. 535; First Nat. Bank of Meadville v. Fourth Nat. Bank of N. Y., 77 N. Y. 320; Heineman v. Heard, 50 N. Y. 27; Gleason v. Clark, 9 Cow. 57; Leverick v. Meigs, 1 Cow. 645; Bigelow v. Walker, 24 Vt. 149; 58 Am. Dec. 156; Wilmot v. Howard, 39 Vt. 447; Gheen v. Johnson, 90 Pa. St. 38; Fowler v. Sergeant, 1 Grant Cas. 355.

Apothecaries. Hansford v. Payne, 11 Bush, 380; Walton v. Booth, 34 La. An. 913; Ray v. Burbank, 61 Ga. 505; Beckwith v. Oatman, 43 Hun, 265; McCubbin v. Hastings, 27 La. An. 713; Fleet v. Hollenkemp, 13 B. Mon. 219; Gwynn v. Duffield, 66 Iowa, 708; Davidson v. Nichols, 11 Allen, 514.

Attorneys. Citizens Loan F. & S. Assn. v. Friedly, supra; Pennington v. Yell, 11 Ark. 212; Cox v. Sullivan, 7 Ga. 144; Varnum v. Martin, 15 Pick. 450; Oldham v. Sparks, 28 Tex. 425; Roots v. Stone, 2 Leigh, 650; Reilley v. Cavanaugh, 29 Ind. 435; Cox v. Sullivan, 7 Ga. 148; Fenaille v. Coudest, 44 N. J. L. 286; Stevens v. Walker, 55 Ill. 151; Dearborn v. Dearborn, 15 Mass. 316; Fox v. Jones, 14 S. W. Rep. 1007; Thomas v.

knowledge, we require of him a competent measure of the skill and knowledge usually found in persons who undertake such matters. And this is hardly an addition to the general rule; for a man of common sense knows wherein he is competent and wherein not, and does not take on himself things in which he is incompetent. If a man will drive a carriage, he is bound to have the ordinary competence of a coachman; if he will handle a ship, of a seaman; if he will treat a wound, of a surgeon; if he will lay bricks, of a bricklayer; and so in every case that can be put. Whoever takes on himself to exercise a craft holds himself out as possessing at least the common skill of that craft, and is answerable accordingly. If he fails, it is no excuse that he did the best he, being unskilled, actually could. He

Schee, 80 Ia. 237; Walpole v. Carlisle, 32 Ind. 415; Caverly v. McOwen, 123 Mass. 574; Bowman v. Tallman, 27 How. Pr. 212.

Caterer. Bishop v. Weber, 139 Mass. 411.
Engineer. McCarty v. Bauer, 3 Kan. 237.

Physicians and Surgeons.' Rowe v. Lent, 62 Hun, 62; 17 N. Y. S. Rep. 131; Barney v. Pinkham, 29 Neb. 350; Becker v. Janinski, 15 N. Y. S. Rep. 675; 27 Abb. N. C. 45; Hitchcock v. Burget, 38 Mich. 501; Hesse v. Knippel, 1 Mich. N. P. 109; Getchell v. Hill, 21 Minn. 464; Getchell v. Lindley, 24 Minn. 265; Reynolds v. Graves, 3 Wis. 416; Gates v. Fleischer, 67 Wis. 504; Briggs v. Taylor, 28 Vt. 180; Wood v. Clapp, 4 Sneed (Tenn.), 65; Alder . Buckley, 1 Swan, 69; Graham v. Gautier, 21 Tex. 111; Hathorn v. Richmond, 48 Vt. 557; Potter v. Warner, 91 Pa. St. 362; Haire v. Reese, 7 Phila. Rep. 138; Fowler v. Sergeant, 1 Grant Cas. 355; Small v. Howard, 128 Mass. 131; Branner v. Stormont, 9 Kan. 51; Utley v. Burns, 70 Ill. 162; Fischer v. Niccolls, 2 Ill. App 484; Quinn v. Donovan, 85 Ill. 194; Long v. Morrison, 14 Ind. 595; Jones v. Angell, 95 Ind. 376; Tefft v. Wilcox, 6 Kan. 46; Peck v. Martin, 17 Ind. 115; Gramm v. Boener, 56 Ind. 497; Holtzman v. Hoy, 19 Ill. App. 459; Landon v. Humphrey, 9 Conn. 209; Ritchey v. West, 23 Ill. 385; McNevins v. Lowe, 40 Ill. 209; Kendall v. Brown, 74 Ill. 232; Barnes v. Means, 82 Ill. 379.

There is an exception to the general rule requiring skill in favor of persons who act during an emergency or who volunteer to act without professing special qualifications. Higgins v. McCabe, 126 Mass. 13; Beardslee v. Richardson, 11 Wend. 25; Gladwell v. Steggall, 5 Bing. (N. C.) 733.

On the subject of competence see post, p. 542.

As the Romans

A good rider cause to think can do to keep

must be reasonably skilled at his peril. put it, imperitia culpae adnumeratur (f). who goes out with a horse he had no ungovernable, and, notwithstanding all he his horse in hand, is run away with by the horse, is not liable for what mischief the horse may do before it is brought under control again (g); but if a bad rider is run away with by a horse which a fairly good rider could have kept in order, he will be liable.

Exception of Necessity. An exception to this principle appears to be admissible in one uncommon but possible kind of circumstances, namely, where in emergency, and to avoid imminent risk, the conduct of something generally entrusted to skilled persons is taken by an unskilled person; as if the crew of a steamer were so disabled by tempest or sickness that the whole conduct of the vessel fell upon an engineer without knowledge of navigation, or a sailor without knowledge of steam-engines. So if the driver and stoker of a train were both disabled, say by sunstroke or lightning, the guard, who is presumably unskilled as concerns driving a locomotive, is evidently not bound to perform the driver's duties. So again, a person who is present at an accident requiring immediate "first aid," no skilled aid being on the spot, must act reasonably according to common knowledge if he acts at all; but he cannot be answerable to the same extent that a surgeon would be. There does not seem to be any distinct authority for such cases; but we may assume it to be law that no more is required of a person in this kind of situation than to make a prudent and reasonable use of such skill, be it much or little, as he actually has.

D. 50. 17, de div. reg. iuris antiqui, 132; cf. D. 9. 2, ad legem Aquiliam, 8. Both passages are from Gaius.

(g) Hammock v. White (1862), 11 C. B. N. S. 588, 31 L. J. C. P. 129; Holmes v. Mather (1875), L. R. 10 Ex. 261, 44 L. J. Ex. 176.

Liability in relation to consequences of act or default. We shall now consider for what consequences of his acts

Liability in relation to consequences of act or default. A comprehensive statement of the law of this subject is that contained in the opinion of the court in the leading case of McDonald v. Snelling (14 Allen, 290): "Where a right or duty is created wholly by contract, it can only be enforced between the contracting parties; but where the defendant has violated a duty imposed upon him by the common law, it seems just and reasonable that he should be held liable to every person injured, whose injury is the natural and probable consequence of the misconduct. In our opinion this is the well-established and ancient doctrine of the common law, and such a liability extends to consequential injuries, by whomsoever sustained, so long as they are of a character likely to follow, and which might reasonably have been anticipated as the natural and probable result, under ordinary circumstances, of the wrongful act." See Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353; 1 Am. Rep. 431; Etna Ins. Co. v. Boone, 95 U. S. 130; Hoag v. Lake Shore, etc., R. Co., 85 Pa. St. 293; 27 Am. Rep. 653; Salem Bank v. Gloucester Bank, 17 Mass. 1; Dunlap v. Wagner, 85 Ind. 529; Henry v. Dennis, 93 Ind. 452; Ryan v. Miller, 12 Daly, 77; Brown v. Howard Ins Co., 42 Ind. 384; 20 Am. Rep. 90; Scott v. Hunter, 46 Pa. St. 192; Baltimore & P. R. R. Co. v. Reaney, 42 Md. 117; Marble v. Worcester, 4 Gray, 395; Campbell v. Stillwater, 32 Minn. 308.

In McGrew v. Stone (53 Pa. St. 436), the maxim In jure causa proxima non remota spectatur is said by the court to mean: "When one is engaged in an act which the circumstances indicate may be dangerous to others, and the event whose occurrence is necessary to make the act injurious, can be readily seen as likely to occur under the circumstances, the defendant is liable if he does not take all the care which prudence would suggest to avoid the injury." But the consequence may not flow naturally and directly from the alleged cause, as some other force may intervene and then the cause is said to be " remote" and insufficient to warrant a recovery.

Thus where a train was forty-five minutes late when a gust of wind threw it from the track and injured a passenger; it was held that though the train would have escaped the gust of wind had it been on time, yet the accident was neither the natural nor probable consequence of the delay, and only an independent force took advantage of it and the road was not liable to the passenger. McClary v. Sioux City, etc., R. R., 3 Neb. 44.

"A party who by contract is entitled to all the articles manufactured by a certain company, he furnishing the raw materials, cannot maintain an action against a wrong-doer who by trespass, stops the machinery of the company and obstructs its operations in performing the contract." Cooley on Torts, 75; Dale v. Grant, 34 N. J. L. 142,