General Part, Illustrations. (15)

1. A. is driving along a dusty road, and the wheels of his carriage throw a little dust on the clothes of B., a foot-passenger, which does them no harm. Even if A. was driving at an incautiously fast pace, A. has not wronged B.

2. A. walks across B.’s field without B.’s leave, doing no damage. A. has wronged B., because the act, if repeated, would tend to establish a claim to a right of way over B.’s land.

3. A. casts and draws a net in water where B. has the exclusive right of fishing. Whether any fish are caught or not, A. has wronged B., because the act, if repeated, would tend to establish a claim of right to fish in that water.

Private defence.27. A person who duly exercises the right of private defence, as defined by the Indian Penal Code, does no wrong to the person against whom he exercises it.

Note.—Would it be proper to add exceptions answering to P. C. 81 and 94, or either of those enactments? On the whole I think not. Even in criminal law the limits of the excuse furnished by “compulsive necessity” are difficult to fix. In the first form of the Penal Code the problem was abandoned as hopeless (see Note B. to the Commissioners’ draft as reported to the Governor-General in Council); and in the existing Code there is still some vagueness; the illustrations to s. 81 are only of acts done for the benefit of others, though the text of the section would cover acts done to avoid harm to the agent’s own person or property. The dicta in Scott v. Shepherd certainly do tend to show that “compulsive necessity” (per De Grey C. J.) may furnish an excuse from civil liability; but I cannot help thinking that if in that case Willis or Ryal had been worth suing, and had been sued, it would have been held that they as well as Shepherd were trespassers. I am not aware of any authority for excluding civil liability in the cases provided for by P. C. 94, and I do not think it would be desirable to exclude it.

A possible but rare class of exceptional cases is purposely left untouched. It is settled that infancy, lunacy, and voluntary drunkenness are not in themselves grounds of exemption from liability for civil wrong. But it may well be thought that in cases where the existence of a particular intent or state of mind is material (as malicious prosecution, and in some parts of the law of libel), lunacy, &c., must, if present, be taken into account as facts relevant to the question whether that intent or state of mind did exist. And what of a person who is, without his own fault, in a state in which his movements are not voluntary—a sleepwalker or a man in a fit? My guest walks in his sleep and breaks a window in my house; is he liable to me for the cost of mending it? A man standing at the boundary of his own land is seized with paralysis and falls on his neighbour’s land; is he a trespasser? Shall we say that the man does not really act at all, and therefore is not liable? Or that he is bound at his peril either to be capable of controlling his own limbs, or to provide against his incapacity being a cause of harm to others? Either way of dealing with the question has plausible reasons in its favour. The prevailing bent of English legal minds would, I think, be against giving exemption. On the whole, these points appear so obscure and so unlikely to arise in practice that they are best passed over. I am not aware of any record in our books of a real case of this kind having occurred for decision.