EDITORIAL DEPARTMENT mote from the result," but the active force may be set in motion by the plaintiff himself. "The whole doctrine that recovery is to be denied if the plantiff's unlawful act was a part of the cause is simply a rule based on public policy." Being in the nature of pun ishment it should be restricted to close limits. "It seems plain that if the illegal act is the immediate, active cause of the damage, recover}- is rightly refused. But it is by no means so clear that public policy demands that, if the illegal act was simply a remote link in the chain of causation, the action shall be barred, and the almost unanimous opinion of the authorities is strong evidence that it does not." In conclusion he says: "The defense of the plaintiff's wrongdoing may be set up in three classes of cases. In the first, the defendant's negligent act creates a dangerous antecedent condition; the plaintiff then does an unlaw ful act from which, by reason of this danger ous condition, damage results. It is contended that the unlawful act is the immediate cause of the damage and that the action should, therefore, be barred. In the second, the un lawful act creates a passive condition: the defendant then does a negligent act which, supervening upon the condition which has thus been created, results in damage. It is maintained that the unlawful act is a cause of the damage, but so remote a cause that it ought not to have the effect of preventing recovery. In the third, the direct cause of the damage is a combination of agencies oper ating simultaneously, one being the unlawful act of the plaintiff and the other the negligent act of the defendant. This case is more doubt ful, but, on the whole, the decisions permitting recovery seem right." TORTS (Theory of Duty of Care) IN the American Law Register for April (V. lui, p. 209), and for May (p. 273), Francis H. Bohlen discusses "The Basis of Affirmative Obligations in the Law of Tort. " He deals especially with the affirmative duty of care in cases of negligence and criticises the fa mous rule of Brett in Heaven v. Pender. From an examination of the early English cases he traces the origin of the distinctions between the action on the case which became assump-
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sit and the similar action for negligent torts, and finds a striking analogy between the early doctrines of consideration in contract and the necessity of a benefit to the defendant, in the relation out of which the affirmative duty of care arises. He finds as the dis tinction between tort and contract that "the public has an interest that no man shall so act as to injure another, it has no concern that he shall benefit any one. " In the early law, assumpsit was alleged for both contract and tort, but when there was an active mis feasance, the assumpsit soon became imma terial. "When, however, there was alleged an affirmative duty to act in some way to protect others, quite a different question was presented. Affirmative action could only be required when it was assumed or imposed as a duty; such duties were only assumed or imposed for a consideration, a benefit con ferred, as their price. " In its origin this duty was an incident of business carried on for gain. No duty arose out of mere passive ownership. In conclusion he says: "The primary conception of the obligation in torts is to refrain from injurious action, un less the doing of the act, even with its atten dant risk, is so beneficial to the public gener ally, the object of it so valuable to the general welfare, that even private injury must be borne to encourage it, the obligation and attendant liability extend to all who may be foreseen as within the radius of its effects. But the conception of a duty of protection owed to another against the consequences of his own actions is foreign to the law of torts. "Such duties rest upon an assumption of them either by express consent or as inevi table legal incidents to certain actions, busi nesses, or uses of property. Such assumption can rest only on consideration. An express promise is void if gratuitous; no affirmative duty will be imposed without a corresponding benefit. "Such obligations arise only when assumed, but they are not the creatures wholly of con sent, they may be annexed to the performance of certain acts, the conduct of certain busi nesses, the rise of property in certain ways the performance of these acts, the entering into such business, and the use of the property is wholly voluntary; but if done, the duties
