non feasance

NON FEASANCE, torts, contracts. The non-performance of some act which ought 
to be performed. 
     2. When a legislative act requires a person to do a thing, its non 
feasance will subject the party to punishment; as, if a statute require the 
supervisors of the highways to repair such highways, the neglect to repair 
them may be punished. Vide 1 Russ. on Cr. 48. 
     3. Mere non-feasance does not imply malice; this is strongly 
exemplified in the case of a plaintiff, who, having issued a writ of capias 
against his debtor, afterwards received the debt, and neglected to 
countermand the writ, in consequence of which the defendant was afterwards 
arrested. On a suit brought by the former defendant against the former 
plaintiff, it was held that the law did not impose on the first plaintiff 
the duty of countermanding his writ. If he had refused to give the 
countermand when requested, it might have been evidence of malice, but in 
such case there would have been something beyond mere non-feasance, an 
actual refusal. 1 B & P. 388; 3 East, R. 314; 2 Bos. & P. 129. 
     4. There is a difference between nonfeasance and misfeasance, (q.v.) 
or malfeasance. (q.v.) Vide 2 Kent, Com. 443 Story on Bailm. Sec. 9, 165; 2 
Vin. Ab. 35 1 Hawk. P. C. 13; Bouv. Inst. Index, h.t.