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Nonfeasance

1911 Encyclopedia Britannica

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MALFEASANCE. The ex pressions "nonfeasance" and "misfeasance," and occasionally "malfeasance," are used in English law with reference to the discharge of public obligations existing by common law, custom or statute. The rule of law laid down is that no action lies for nonfeasance, i.e. for failure or refusal to perform the obligation, but that an action does lie for misfeasance or malfeasance, i.e. for negligently and improperly performing the obligation. The doctrine was formerly applied to certain callings carried on publicly (see R. v. Kilderby, 1669, I Will. Saund. 311, 312 c). At present the terms misfeasance and nonfeasance are oftenest used with reference to the conduct of municipal authorities with reference to the discharge of their statutory obligations; and it is an established rule that an action lies in favour of persons injured by misfeasance, by negligence in discharge of the duty; but that in the case of nonfeasance the remedy is not by action but by indictment or mandamus or by the particular procedure prescribed by the statutes. This rule is fully established in the case of failure to repair public highways; but in other cases the courts are astute to find evidence of carelessness in the discharge of public duties and on that basis to award damages to individuals who have suffered thereby. Misfeasance is also used with reference to the conduct of directors and officers of joint-stock companies. The word malfeasance is sometimes used as equivalent to mala praxis by a medical practitioner. (W. F. C.)