A word of preliminary explanation will be useful.  It has been shown in the Lecture just referred to that an act, although always importing intent, is per se indifferent to the law.  It is a willed, and therefore an intended coordination of muscular contractions.  But the intent necessarily imported by the act ends there.  And all muscular motions or co-ordinations of them are harmless apart from concomitant circumstances, the presence of which is not necessarily implied by the act itself.  To strike out with the fist is the same act, whether done in a desert or in a crowd.

The same considerations which have been urged to show that an act alone, by itself, does not and ought not to impose either civil or criminal liability, apply, at least frequently, to a series of acts, or to conduct, although the series shows a further co-ordination and a further intent.  For instance, it is the same series of acts to utter a sentence falsely stating that a certain barrel contains No. 1 Mackerel, whether the sentence is uttered in the secrecy of the closet, or to another man in the course of a bargain.  There is, to be sure, in either case, the further intent, beyond the co-ordination of muscles for a single sound, to allege that a certain barrel has certain contents,—­an intent necessarily shown by the ordering of the words.  But both the series of acts and the intent are per se indifferent.  They are innocent when spoken in solitude, and [132] are only a ground of liability when certain concomitant circumstances are shown.

The intent which is meant when spoken of as an element of legal liability is an intent directed toward the harm complained of, or at least toward harm.  It is not necessary in every case to carry the analysis back to the simple muscular contractions out of which a course of conduct is made up.  On the same principle that requires something more than an act followed by damage to make a man liable, we constantly find ourselves at liberty to assume a co-ordinated series of acts as a proximately simple element, per se indifferent, in considering what further circumstances or facts must be present before the conduct in question is at the actor’s peril.  It will save confusion and the need of repetition if this is borne in mind in the following discussion.

The chief forms of liability in which fraud, malice, and intent are said to be necessary elements, are deceit, slander and libel, malicious prosecution, and conspiracy, to which, perhaps, may be added trover.

Deceit is a notion drawn from the moral world, and in its popular sense distinctly imports wickedness.  The doctrine of the common law with regard to it is generally stated in terms which are only consistent with actual guilt, and all actual guilty intent.  It is said that a man is liable to an action for deceit if he makes a false representation to another, knowing it to be false, but intending that the other should believe and act upon it, if the person addressed believes