erty, the court may revise and alter its judgment as to the amount and manner of payment of alimony. The court may also give back to a wife her maiden name when rendering a judgment of divorce.

Defenses. One of the most frequent defenses to divorce proceedings is that the plaintiff has condoned or forgiven the act complained of on condition that it will not occur again. Condonation occurs most frequently in cases of adultery and cruelty. It takes place, where, after the injury, the parties become reconciled and have lived together or cohabited as husband and wife. Such a cohabitation is a forgiveness of the injuy which prevents its being afterwards brought forward as a ground of divorce. It is, however, a conditional forgiveness only, being subject to the implied condition that the injury shall not be repeated and that the other party shall thereafter be treated with conjugal kindness. Similar subsequent misconduct, though of a slighter nature than would have been necessary in itself to constitute a cause for divorce, revives the past acts.

Recrimination is the setting up by a defendant as a defense in an action for divorce of conduct on the part of the plaintiff which might entitle the defendant to a divorce. Thus, if in an action for a divorce on account of the adultery of the defendant, the defendant proves that the plaintiff has also been guilty of adultery, a divorce will not be granted.

Collusion exists where by agreement between husband and wife one of them commits or appears to have committed some matrimonial breach for the purpose of allowing the other to obtain a divorce, as though there had been a real injury. It is a fraud on the court and is most frequent where adultery is claimed.

"Connivance is the corrupt consent of one party to the commission of the acts of the other constituting a cause of divorce. Corrupt consent is manifest by passive permission, with intent to connive at or actively procure the commission of the acts complained of." When connivance is shown, no divorce will be granted, as no injury was received, for a person cannot complain of an injury to which he has consented. A divorce obtained by connivance may also be set aside by the court granting it.

CHAPTER XXXVI.

TORTS.

SECTION I.

TORTS IN GENERAL.

Tort defined.-The word tort is used to describe that branch of the law which treats of redress of injuries which are neither crimes nor flow out of the breach of contract. A tort is a private or civil wrong or injury. An accurate and comprehensive definition of the term tort cannot be given. A study of each specific tort is necessary, as there is no such thing as a typical tort, that is to say, a tort which includes all the elements entering into all the rest, and the most common torts will therefore be discussed. While all torts differ from each other in some particular, they have this in common: They all involve a breach of some duty for which an action for damages will lie. Bigelow in his work on torts, defines a tort to be a breach of duty established by municipal law for which a suit for damages can be maintained, or, conversely, the infringement of a private right, or a public as a private right, established by municipal law.

Distinguished from contracts and crimes.-A tort may be distinguished from a contract in that a contract implies an agreement by at least two parties, while a tort involves no agreement. A tort may, however, and frequently does, grow out of or be coincident with a contract, as in the case of a fraudulent sale. In such cases the law gives the injured party an election of remedies, and he may elect to bring his action either ex contractu, that is, sue for the breach of contract, or he may sue ex delicto, that is, sue for the wrong or tort. Again, where one wrongfully disposes of the property of another, and receives the consideration therefor, the party may proceed upon the supposition of an implied

contract in his favor, and may sue on the contract for the consideration received by the wrongdoer. In such cases he is said to "waive the tort."

Parties jointly committing a tort are generally jointly and severally liable without any right of contribution from each other. This is on the principle that courts will not interfere where there has been an intentional violation of law or where the wrongdoer is presumed to have known that the act was unlawful.

Persons under personal disability to contract may nevertheless commit and be liable for their torts and crimes. Thus, in a Wisconsin case, where an infant six years of age entered the plaintiff's premises and destroyed his flowers and shrubbery, and the infant was sued for the damage done, the court said: "Infants are liable in an action ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive torts, as frauds.....The privilege of infancy is purely protective and infants are liable to actions for wrongs done by them, as to an action for slander, an action of trover for property embezzled, or an action grounded on fraud committed.... This suit is brought to recover damages for a trespass committed by the infant; not for vindictive or punitory damages, but for compensation, and for that he is clearly liable. If damages by way of punishment were demanded, undoubtedly his extreme youth and consequent want of discretion would be a good answer." Natural capacity only to commit the wrong is necessary. Thus, an insane person could not be he held liable in an action for malicious prosecution, as he could not be guilty of malice.

At common law, generally, the death of either party destroyed the right of action for a tort, but by statute numerous actions now survive. "In addition to the actions which survive at common law, the following shall also survive: Actions for the recovery of personal property or the unlawful withholding or conversion thereof, for assault and battery, false imprisonment or other damage to the person, for goods taken and carried away, for damage done to real or personal estate, equitable actions to set aside conveyances of real estate, to compel a reconveyance thereof, or to quiet the title thereto, and for a specific performance of contracts relating to real estate."

While our state constitution abolishes imprisonment for

debt "arising out of or founded on a contract express or implied," imprisonment on an execution issued on a judgment recovered in an action founded on a tort is still allowed under the conditions prescribed in the statutes. The person confined may procure a discharge at the end of ten days upon making oath that he has no property, except such as is exempt by law from being taken on execution, to the extent of twenty dollars. In order to secure his discharge before the end of the ten days, or without making the above oath, the prisoner must satisfy the tort judgment and pay the costs of his confinement. If unable to pay, the plaintiff must pay the same. Thus, where one takes a coat from a store with the understanding that he will return it or pay for it, if he does not return it, nor pay for it, he is liable in tort and may be imprisoned as mentioned above, or the tort may be waived by the seller and the taker may be sued on implied contract for the price of the coat.

The same state of facts may constitute a public wrong (crime) and a private wrong (tort), and be the subject both of a criminal prosecution and a suit for damages either at the same or different times. "Certain acts or omissions are made public offenses by the common law or by statute, either because their inherent qualities and necessary tendencies make them prejudicial to organized society, or because it is believed that the evils likely to flow from them will be so serious that the general good will be subserved by forbidding them, and penalties are attached to them, which are imposed on public grounds. These according to their grade, are crimes and misdemeanors, or they are simply things prohibited under penalty. But where the same wrongful acts cause damage to private individuals, they come directly within the definition of torts, and are such."

General liability for torts.-Where one has sustained an injury by the negligence or misconduct of another, the law grants reparation for the injury sustained. The loss must flow from the wrong. There are many cases in which damage is presumed, as attempts on one's life, restraint of liberty (false imprisonment), etc. The relation of cause and effect must also be shown to exist between the act and the injury and the damage must be the result of the wronful act complained of, and must be such as may reasonably be expected from the misconduct.

Malice or a malicious intention must be proved to warrant a recovery in many torts, but the term "malice" has two distinct meanings in the law. The first of these is the popular sense, meaning ill will, spite or evil motive towards another, while the second sense is technical and confined to use in the law. Here it means a wrongful act done intentionally without just cause or excuse--the wilful violation of a known right, or the doing of an act in reckless or wanton disregard of another's rights. In the former sense (denoting motive) the term malice is used principally in the criminal law, but in certain torts when malice is present in the first sense, it will warrant the recovery of punitory or exemplary damages. An act lawful in itself is not converted by a malicious or bad motive into an unlawful act, so as to make the doer of the act liable in a civil action. But in an important case our supreme court has held that the doctrine that an act which is not actionable if done by one, is not when done by many, is not the law of this state. Neither is the doctrine, as applied to a combination of persons to wrongfully injure another, that an act, lawful without malice, does not become unlawful by adding such element. The court said: "An actionable conspiracy is a combination by two or more persons for the purpose of accomplishing a criminal or unlawful object by criminal or unlawful means, or a lawful object by criminal or unlawful means. One may, through purely malicious motives attract to himself another's customers and the injury will be so slight in contemplation of law that De minimis non curat lex applies; but when he unites others with him to maliciously injure the business of another for the mere gratification, in whole or in part, of a desire to inflict such injury, the condition of there being the combined force of many directed towards another, characterized by the element of malice, renders the act of combining for the particular purpose unlawful and a substantive offense, in the absence of a statute requiring some additional element...... The union of individual forces by agreement, to accomplish the injury, gives to such agreement the character of a purpose to reach the end in view by violence.......The law never has and probably never will leave an individual, or a class of individuals, remediless against such wrong. Our supreme court in this case refused to follow the ruling of English courts on this point, where an action lawful if done by one, is so if done by many.