Pollock’s Model Version of Tort Law
- Sir Frederick Pollock
- Subject Area: Law
Source: Sir Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law: to which is added the Draft of a Code of Civil Wrongs prepared for the Government of India, Fourth Edition (London: Stevens and Sons, 1895). DRAFT OF A CIVIL WRONGS BILL, Prepared for the Government of India.
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DRAFT OF A CIVIL WRONGS BILL, Prepared for the Government of India.
PREFATORY NOTE.
Towards the end of 1882 I was instructed by the Government of India to prepare a draft Bill to codify the law of Civil Wrongs, or so much of it as might appear to be of general practical importance in British India. The draft was constructed pari passu with the writing of the present book, or very nearly so, and it was provisionally completed in 1886; it is now published with the consent of the Secretary of State for India. The text is given as it then stood, but the notes which accompanied it are considerably abridged. I have inserted in square brackets a few additional references and remarks, chiefly made necessary by important decisions given since the draft was completed. The Government of India has not finally decided whether it is desirable to codify the law on the subject at present. Sir Henry Maine thought many years ago that the time was ripe for it(a) ; but I understand that a considerable majority of the opinions which have lately been collected from judicial and other officers in India are unfavourable to action.
It may be proper to explain that the draft as it stands is not the mere production of an English lawyer unacquainted with India, but represents a certain amount of consideration and discussion by specially competent critics. In the preparation of the Bill I had, in particular, the advantage of constant criticism from Sir A. Macpherson and Sir William Markby, who (I need hardly say) were excellently qualified both by their English learning and by their Indian judicial experience; and, without assuming to make either of those learned persons at all answerable for my work, I ought to say that their criticism was the direct cause of material improvement in several points. A careful memorandum on the earlier parts of the draft was prepared by Mr. (since Justice) Syed Mahmud, and to this also I am indebted for good suggestions. Further, I endeavoured, so far as I had opportunity in England, to procure criticism and suggestions from Indian judicial and executive officers, with reference to the possible working of a code of Civil Wrongs in rural districts and in the non-regulation Provinces. Although such opportunities were limited, I thus had the benefit of acute and valuable remarks of which the substance was embodied in the draft or in the notes to it. The letter of my instructions would have justified me in merely stating in the form of a declaratory Act what I conceived to be the English law, and leaving all questions of Indian law and usage to be dealt with separately by the Government of India; but such a course did not appear to be reasonably practicable. The reader will therefore bear in mind that in certain places the draft Bill deliberately departs from existing English law. Special attention is called to all such departures, and the reasons for them indicated.
A Bill to define and amend certain parts of the Law of Civil Wrongs.
Preliminary.
It extends to the whole of British India.
3. The Acts mentioned in the schedule hereto are hereby repealed to the extent specified in that schedule.
4. In this Act, unless there be something repugnant in the subject or context,—
“Court” includes every Court, judge, and magistrate and officer,
“Good faith” implies the use of due care and attention:
“Grievous hurt” means any of the kinds of hurt which are so designated in the Indian Penal Code,
5. This Act is arranged as follows:—
[See Table of Contents prefixed. In the original draft this clause was left blank pending further revision.]
GENERAL PART.
Chapter I.General Principles of Liability.
Any person thereby becoming entitled to a legal remedy against the wrong-doer is said to be wronged by him.
(a) by an act intended to cause harm(b) :
(b) by intermeddling without authority with anything which belongs to that other(c) .
Illustration.
A. finds a watch which B. has lost, and in good faith, and intending the true owner’s benefit, attempts to clean it and put it in order. In doing so A. spoils the watch. A. has wronged B.
- (a) by any act forbidden by law; or
- (b) by omitting to perform, or insufficiently or improperly performing, any general duty imposed on him by law; or
- (c) by want of due care and caution in his acts or conduct.
In the absence of any more specific rule applicable to the case, due care and caution means such care and caution as a man of ordinary sense, knowledge and prudence may be expected to use in the like case, including, in the case of acts and undertakings requiring special skill, such care and skill as may be expected of a person reasonably competent in the matter in hand.
Exception.—Where the conduct of a matter requiring special skill is undertaken of necessity [or “under circumstances of evident necessity”], and to avoid a greater risk, the person undertaking it is deemed to use due care and caution if he makes a reasonable use of such skill as he actually possesses.
Illustrations.
1. B., a zamíndár, transfers a portion of his zamíndárí to C., in accordance with the provisions of the regulation in force in the province, by which regulation, registration and sub-assessment are needful to complete the validity of the transfer(e) . A., the local collector, refuses to register and sub-assess the portion so transferred. A. has wronged C.
2. A., not being a builder, erects a scaffolding for the purpose of repairing his house. It is unskilfully constructed, and by reason thereof part of it falls upon B., who is passing on the highway, and hurts him. A. has wronged B., though A. may have put up the scaffolding as well as he could.
3. A. goes out driving with a horse and carriage. A. is bound to drive with such skill as, according to common experience, is expected of a coachman.
4. A. goes out driving, and takes with him a friend, B., who is not accustomed to driving. A. is disabled by a sunstroke. No skilled help being at hand, B. takes the reins and drives. In deciding whether under these circumstances B. acts with due care and caution, regard is to be had to B.’s want of skill.
5. A., an engineer not skilled in navigation, is a passenger on a small river steamer. The only competent sailor on board is disabled by an accident, and A., at the request of other passengers, takes charge of the steamer. In deciding whether, under these circumstances, A. acts with due care and caution, regard is to be had to the actual extent of his knowledge and skill.
6. A. and B. are out shooting. A tiger attacks them and carries off B. No other help being at hand, A., who is an indifferent shot, fires at the tiger and kills it, but also wounds B. A. has not wronged B., though a better shot might probably have killed the tiger without wounding B.
- (a) an ordinary consequence of that act or omission, whether intended by the person so acting or omitting or not; or
- (b) a consequence thereof which that person foresaw, or with due care and caution might have foreseen(g) ;
a wrong-doer is liable for all such consequences of his wrongful act or omission as in this section mentioned.
Illustrations.
1. A. unlawfully throws a stone at B., which misses B. and hits and breaks C.’s water-jar. A. has wronged C.
2. A. lies in wait for B., intending to assault and beat him as he goes home in the evening. Mistaking C. for B. in the dusk, A. assaults C. A. has wronged C.
3. A. unlawfully diverts a stream for the purpose of depriving B.’s growing crops of their irrigation. The diversion of the stream harms C.’s crops as well as B.’s by drought, and the water floods a piece of D.’s land and spoils the crops growing thereon. A. has wronged both C. and D.
4. A. and C., who is B.’s servant, quarrel in the street. A. draws a knife and threatens C. with it. C. runs hastily into B.’s house for protection, and in so doing strikes and upsets a jar of ghee belonging to B., so that the jar is broken and the ghee lost. A. has wronged B.(h) .
5. A. whips a horse which B. is riding. The horse runs away with B., and knocks down C., who falls against D.’s window and breaks it. A. has wronged both C. and D.(i) .
6. A. leaves his horse and cart unattended in the street of a town. B. and C. are children playing in the street. B. climbs into the cart; as he is doing so C. causes the horse to move on, and B. is thereby thrown down under the wheel of the cart, which passes over him and injures him. A. has wronged B.(k) .
7. A. leaves a loaded gun in a place where he knows that children are accustomed to play. B. and C. come with other children to play there; B. takes up the gun and points it in sport at C. The gun goes off and wounds C. A. has wronged C.(l) .
8. A. unlawfully causes a stream of water to spout up in a public road. B. is driving his horse and carriage along the road: the horse takes fright at the water and swerves to the other side, whereby the horse and carriage fall into a cutting by the roadside which has been improperly left open by C., and B. is wounded and the horse and carriage damaged. A. has wronged B.(m) .
9. The other facts being as in the last illustration, some of the water runs into the cutting, and wets and damages some clothes belonging to D., who is at work in an adjoining field and has deposited them there. A. has not wronged D.(n) .
10. A. leaves his gate, opening on a highway, insufficiently fastened; A.’s horse gets through the gate and kicks B., who is lawfully on the highway. If the horse was not to A.’s knowledge a vicious one, A. has not wronged B.(o) .
11. A. is the owner of a field in which he keeps horses. A. neglects the repair of the gate of this field, whereby a horse breaks down the gate, strays into B.’s adjoining field, and kicks and injures a horse of B.’s which is there kept. A. has wronged B.(p) .
12. A. is driving an ox through the street of a town with due care and caution. The ox goes off the road into B.’s shop and does damage to B.’s goods. The ox may be liable to be impounded, but B. cannot sue A. for compensation, for, although the damage is the natural consequence of the ox straying, A. has done no wrong.(q) .
Illustrations.
1. A., being on work on a building, by carelessness lets fall a block of stone on B., who is lawfully passing by, and B. is thereby so injured that he shortly afterwards dies. A. has wronged B., and B.’s executors can sue A., though A.’s act may be an offence under sect. 304a of the Penal Code.
2. A. wrongfully takes B.’s cow out of B.’s field and detains it under pretence that he bought it at an auction-sale in execution of a decree. B. can sue A., though A.’s act may be an offence under sect. 378 of the Penal Code.
(2) The master of a person engaged on any work is that person who has legal authority to control the performance of that work, and is not himself subject to any similar authority in respect of the same work.
Exception 1(x) .—Where the person wronged and the wrong-doer are servants of the same master, and the wrong is done in the course of one and the same employment on which they are at the same time engaged as such servants, the wrong-doer not being in that employment set over the person wronged, the master is not liable unless he knew the wrong-doer to be incompetent for that employment, or employed him without using reasonable care to ascertain his competence.
Explanation(y) .—For the purposes of the foregoing exception the whole and every part of the ordinary service of a household is deemed to be one and the same employment.
Exception 2(z) .—A person who is compelled by law to use the services of another person, in the choice of whom he has no discretion, is not liable for wrong committed by that other in the course of such service.
Illustrations.
1. A. directs his servant B. to put a heap of rubbish in his garden, near the boundary, but so as not to interfere with his neighbour C. B. executes A.’s order, and some of the rubbish falls over into C.’s garden. A. has wronged C.(a) .
2. A. sends out his servant B. with a carriage and horse. B. overtakes C.’s carriage and horse on the road, and strikes C.’s horse in order to make C.’s driver draw aside and let him pass. A. has wronged C.
3. A. sends out his servant B. with a carriage and horse. B. meets C.’s carriage and horse, and strikes C.’s horse in order to bring C.’s driver, with whom he has a private quarrel, into trouble. A. has not wronged C.
4. A. sends out his servant B. with a cart on business errands. In the course of doing A.’s business, B. takes a longer way for a purpose of his own, and by careless driving runs over C. After finishing his business, and as he is driving home, B. picks up a friend D.; D. persuades B. to drive him in another direction, and by careless driving B. runs over E. A. is liable to C., but he is not liable to E.(b) .
5. N., a passenger by the X. Company’s railway, books for Allahabad, and takes his seat in a train which is in fact going thither. A. is a servant of the company whose duty is (among other things) to see that passengers do not get into wrong trains or carriages. A., erroneously supposing N. to have got into a train which is not going to Allahabad, pulls him out of the carriage as the train is starting, whereby N. falls on the platform and is injured. The X. Company has wronged N., even if A.’s instructions were that he must not use force to remove passengers from a wrong carriage(c) .
[6. B. is A.’s servant; part of his duty is to light the fire in a certain room in A.’s house. B. finds difficulty in lighting the fire from the chimney being foul, and makes a fire of straw under the chimney in order to clear it. The house takes fire, and damage is done thereby to the house and goods of a neighbour C. B. only, and not A., has wronged C., for it was not B.’s business as A.’s servant to cleanse the chimney](d) .
7. C., a customer of A.’s bank, cashes a draft, and by mistake leaves some of his money on the counter. He returns and takes it up hurriedly; B., one of the bank clerks, thinks he has stolen some of the bank’s money, and pursues and arrests him. A. has not wronged C., inasmuch as it is no part of a bank clerk’s duty to pursue or arrest thieves, although he might be justified in so doing if theft had really been committed(e) .
8. N. is a platelayer in the service of X. Railway Company. He makes a journey on the company’s service in a train on the company’s line. By the negligence of a pointsman employed by the company, the train goes off the line, and N. is injured. The X. company is liable to N.(f) .
[9. P. is an engine-driver in the service of the X. Railway Company. A train which he is driving in the course of his service goes off the line by the negligence of Q., a generally competent pointsman also in the company’s service, and P. is injured. The X. Company is liable to P.](g) .
10. A steamship of the A. Company, being navigated up the harbour of Bombay by a compulsory pilot, runs down B.’s bagalo. If the A. Company can show that the collision was due to the unskilfulness of the pilot, and not of their own master or mariners, A. Company has not wronged B.(h) .
(2) Persons who agree to commit a wrong which is in fact committed in pursuance of that agreement are joint wrong-doers even if the wrongful act is committed by or under the immediate authority of some or one only of those persons(i) .
(3) Where judgment has been recovered against some or one of joint wrong-doers without the other or others, no other suit can be brought by the same plaintiff or in his right for the same cause of action against the other or others(k) .
(4) Any one of joint wrong-doers is not entitled to contribution or indemnity from any other of them in respect of compensation for a wrongful act which he did not at the time of doing it believe in good faith to be lawfully authorized(l) .
Chapter II.General Exceptions.
Explanations.—The motives with which a judge or judicial officer acts within his jurisdiction are immaterial(i) .
Illustrations.
1. Z., not being a domestic servant, is charged before A., a magistrate, under a local regulation with “misbehaviour as a domestic servant,” and sentenced by him to imprisonment without proper investigation of the facts which show that Z. is not a domestic servant. A. has wronged Z., for though he may have believed himself to have jurisdiction, he could not under the circumstances so believe in good faith within the meaning of this section(k) .
2. B. is accused of having stolen certain goods. A., a deputy magistrate, causes B.’s wife (against whom no evidence is offered) to be arrested and imprisoned for twenty-four hours, for the purpose, as it is suggested, of compelling B. to appear. A. has wronged B.’s wife, for he could not in good faith believe himself to have jurisdiction to arrest her(l) .
3. A., a customs officer, purporting to act under the provisions of Act VI. of 1863, imposes a fine on B., who to A.’s knowledge is a foreigner residing out of British India, on the alleged ground that B. is interested in goods unlawfully imported in a vessel, of which B. is in fact owner. In B.’s absence A. seizes and sells goods of B.’s for the alleged purpose of satisfying the fine. A. does not, before these proceedings, take legal advice or give B. an opportunity of being heard. A. has wronged B., for under these circumstances, though he may have believed himself to have jurisdiction, he could not so believe in good faith within the meaning of this section(m) .
4. A., a magistrate, makes an order for the removal of certain property of B.’s, acting on a mistaken construction of a local regulation. If the act is judicial, and the mistake such as a magistrate of ordinary qualifications might, in the opinion of the Court, entertain after fair inquiry and consideration, A. has not wronged B.(n) .
5. A local Act gives power to magistrates (among other things) to remove obstructions or encroachments in highways. A., a magistrate, makes an order purporting to be under this Act for the removal of certain steps in front of Z.’s house. If this order is in excess of the power given by the Act, A. has wronged Z., inasmuch as the proceeding is not a judicial one(o) .
- (a) by a public officer in obedience to an order given by a person whom he is generally bound to obey, that order being such as he is bound to obey, or such as he in good faith believes himself bound to obey;
- (b) by a person acting in execution of a duty or exercise of a discretion which he is by law bound to perform or exercise, or as in execution of a duty or exercise of a discretion which he in good faith believes himself to be bound by law to perform or exercise;
that act does not render the officer or other person so doing it liable as for a wrong.
Illustrations.
1. A., a judge’s peadah, is ordered by the judge to seize B.’s goods in execution of a decree, and does so. Though the proceedings may have been irregular, or the specific goods which A. is ordered to seize may not be the goods of the person against whom execution was adjudged, A. has not wronged B.
2. A., a policeman, is ordered by his superior officer to arrest B., and in good faith believes the order to be lawful. Whether the order is lawful or not, A. does no wrong to B. by using towards B. such force as is reasonably necessary to effect the arrest. But A. does wrong to B. if he strikes him otherwise than in self-defence, or in any other manner uses excessive force towards him.
Illustrations.
1. The articles of association of a joint stock company provide that “an extraordinary general meeting specially called for the purpose may remove from his office any director for negligence, misconduct in office, or any other reasonable cause.” A., being a director of a company, is charged with misconduct in his office, and an extraordinary special meeting is duly called to consider these charges. A. is summoned to this meeting, but does not attend. The meeting resolves to remove A. from his office. No wrong is done to A., even if, in the opinion of the Court, the charges against him were not well founded.
2. The rules of a club provide that if in the opinion of the committee the conduct of a member is injurious to the character and interest of the club, the committee may recommend that member to resign, and that if the committee unanimously deem the offence of so grave a character as in the interests of the club to warrant the member’s expulsion, they may suspend him from the use of the club. The committee must not suspend a member under this rule without giving him fair and sufficient notice of the charges against him, and an opportunity of meeting them(q) .
But if, after giving such notice and opportunity, and making reasonable inquiry, the committee, acting in good faith, are of opinion that the conduct of a member is so injurious to the character and interests of the club as to warrant his expulsion, and suspend him accordingly, they do not wrong that member(r) .
3. [Stated for consideration.]
A. and B. are members of the same Hindu caste. A. is president of the annual caste feast, to which B. is entitled, according to the usage of the caste, to be invited. A. wilfully, and without reasonable belief in the existence of any cause for which B. ought to be excluded, and without taking any of the steps which, according to usage, ought to be taken before excluding a member of the caste from the feast, causes B. not to be invited, whereby B. suffers in character and reputation. A. has wronged B.(s) .
Illustrations.
1. A., the master of a ship, believing and having reasonable cause to believe that B., one of the crew, is about to head a mutiny against him, causes B. to be seized and put in confinement. A. has not wronged B., but, after having provided for the immediate discipline and safety of the ship, A. must not further punish B. without holding an inquiry and giving B. an opportunity of being heard in his own defence.
2. A person having the lawful custody of a lunatic does no wrong to the lunatic by using for his treatment such usual and reasonable restraint as is approved by the judgment and practice of competent persons(u) .
Provided that where the authority is conferred for the benefit of the person exercising it, he must comply with all conditions prescribed by law for such exercise, and must avoid doing any unnecessary harm in such exercise.
Illustrations.
1. The X. Railway Company is authorized to make and work a railway passing near Z.’s house. Z. is put to inconvenience, and the structure of his house injured, by the noise and vibration necessarily produced by the trains. The company has not wronged Z.(v) .
2. The X. Railway Company in execution of its authorized works makes a cutting which affects the support of A.’s house and puts it in danger of falling. The company has wronged A.(x) .
[3. The X. Railway Company is authorized to raise and maintain on all or any part of certain lands a railway with incidental works, workshops, and other buildings. The company builds workshops within the authorized limits for the purpose of making plant and appliances for the use of the railway. A. is a householder, near the site of the workshops, and the smoke from the workshops is such as to create a nuisance to A. in the use and occupation of his house. The company has wronged A.](y) .
Illustrations.
1. A. is lawfully shooting at a rifle range. His shot strikes the target, and a splash of lead from it strikes B., a passer-by, outside the limits which have been marked as the limits of danger by competent persons. A. has not wronged B.
2. A. is lawfully shooting at a rifle range. His shot falls short, ricochets over the butts, and strikes B., a passer-by, outside the limits of danger marked as aforesaid. It is a question of fact whether, having regard to all the relevant circumstances, A. has or has not used due care and caution(z) . If he has not done so, he has wronged B.
3. B. assaults A. with a knife; A. has a stick with which he defends himself. C., a policeman, comes up to A.’s assistance. A., in warding off a blow aimed at him by B., strikes C. with the stick. A. has not wronged C., unless by ordinary care he could have guarded himself without striking C.(a) .
Illustrations.
1. B. is a schoolmaster. A. sets up a new school in the same village which attracts scholars from B.’s school and so diminishes B.’s profits. A. has not wronged B.(c) .
2. The facts being otherwise as in the last illustration, A. procures C. to waylay the children going to B.’s school and intimidate them so that they cease to go there. Both A. and C. have wronged B., for A. may not attract scholars from B.’s school to his own by unlawful means.
3. A. is driving at an ordinary pace along a road. B. is a foot-passenger walking by the side of the road. A splash of mud from the wheel of A.’s carriage goes into B.’s eye and injures it. A. has not wronged B.(d) .
4. A. and B. are adjacent landowners. A. digs a deep well on his land to obtain water supply for agricultural purposes. This digging intercepts underground waters which have hitherto supplied wells on B.’s land by percolation, and B.’s wells are dried up. A. has not wronged B.(e) .
[5. The facts mentioned in the last illustration having happened, B. supplies himself with water otherwise, but afterwards, not in order to obtain water, but in order to be revenged on A., B. digs a still deeper well on his own land, and thereby intentionally cuts off the supply of water to A.’s well. Here B. has wronged A., for he has used his own land not for any lawful purpose, but only for the unlawful purpose of doing wilful harm to A.(f) .]
6. A. is the superintendent of marine at Calcutta. B. is the owner of a tug. The captain of B.’s tug having refused to tow a Queen’s ship except on terms which A., in good faith, thinks exorbitant, A. issues an order prohibiting officers of the pilot service from allowing B.’s tug to take in tow any ship of which they have charge, and B. thereby loses employment and profits. A. has not wronged B., for the order is an exercise of his lawful discretion as to the manner in which a public duty is to be performed by persons under his direction(g) .
Illustrations.
1. A. looks on at a fencing match between B. and C. In the course of play B.’s foil breaks, and the broken end flies off and strikes A. No wrong is done to A.
2. A. goes into a wood to cut down a tree, and B. goes with him for his own pleasure. While A. is cutting a tree the head of his axe flies off and strikes B. A. has not wronged B., unless the axe was, to A.’s knowledge, unsafe for use.
3. B. and C. are letting off fireworks in a frequented place. A. stops near them to look at the fireworks. A firework explodes prematurely while B. is handling it, and the explosion injures both C. and A. B. has not wronged either C. or A., though B. and C. may be punishable under section 286 of the Indian Penal Code.
Provided that the act must be done either in the manner to which he has consented, or with due care and caution and in a reasonable manner from which he has not dissented.
(2) In the case of a person under twelve years of age or of unsound mind, the consent of the guardian or other person having lawful charge of him is necessary for the purposes of this section, and is also sufficient:
Provided that—
- (a) the act must be done for the benefit of the person under twelve years of age or of unsound mind;
- (b) it must not be intended to cause death;
- (c) unless it is intended to prevent death or grievous hurt or to cure any grievous disease or infirmity it must not be intended to cause grievous hurt, nor be known to the person doing it to be likely to cause death.
Explanation.—Nothing is by this section exempted from being a wrong which is an offence under any section of the Indian Penal Code(h) .
Illustrations.
1. A. and B. are playing a game in which a ball is struck to and fro; the ball, being struck by A. in the usual manner in the course of the game, strikes and hurts B. A. has not wronged B.
2. A. and B. practise sword-play together with sticks, and repeatedly strike one another. No wrong is done if the blows are fairly given in the usual course of play.
3. A. performs a surgical operation on B. with B.’s consent. Whatever the result of the operation, A. has not wronged B. if he has acted in good faith with the ordinary skill and judgment of a competent surgeon.
4. A. has a valuable horse which has gone lame, and requests B., a farrier, to try on it a particular mode of treatment which has been recommended to A. B. does so in good faith, following A.’s directions. The treatment is unsuccessful and the horse becomes useless. B. has not wronged A.
5. A. and B. fight with sharp swords for the purpose of trying their skill, and wound one another. Here A. has wronged B., and B. has wronged A., for their acts are offences under section 324 of the Indian Penal Code, and are not within the exception in section 87.
6. A. requests B., a farrier, to perform an operation on his horse. B. knows that A. has mistaken the character of the horse’s injury, and that the operation is unnecessary, but conceals this from A. that he may gain more fees from the subsequent treatment, and performs the operation according to A.’s request. Even if he performs it skilfully, B., not having acted in good faith, has wronged A.
Illustrations.
1. A.’s country house is on fire. A. is away on a journey, and no person authorized to act for him is on the spot. B., C., and D., acting in good faith for the purpose of saving A.’s house, throw water on the fire which puts out the fire, but also damages A.’s furniture and goods. B., C., and D. have not wronged A.
2. Z. is thrown from his horse, and is insensible. A., a surgeon, finds that Z. requires to be trepanned. A., not intending Z.’s death but in good faith for Z.’s benefit, performs the trepan with competent skill before Z. recovers his power of judging for himself. A. has not wronged Z.
3. Z. is carried off by a tiger. A. fires at the tiger, knowing it to be likely that the shot may kill Z., but not intending to kill Z., and in good faith intending Z.’s benefit. A.’s ball gives Z. a mortal wound. A. has not wronged Z.
4. A., a surgeon, sees a child suffer an accident, which is likely to prove fatal unless an operation be immediately performed. There is not time to apply to the child’s guardian. A. performs the operation in spite of the entreaties of the child, intending in good faith to act for the child’s benefit. A. has not wronged the child if the operation is proper in itself, and performed with competent skill.
5. A. is in a house which is on fire with Z., a child. People below hold out a blanket. A. drops the child from the housetop, knowing it to be likely that the fall may hurt the child, but not intending to hurt the child, and intending in good faith the child’s benefit. A. has not wronged Z.
Illustrations.
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(k) .
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(l) .
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.
SPECIAL PART.
Chapter III.Assault and False Imprisonment.
Illustrations.
1. A. and Z. are passing one another in a narrow way; A. unintentionally pushes against Z. A. has not assaulted Z., though, if actual harm is caused, he may be liable to Z. for negligence(m) .
2. A. and Z. are in a narrow way; A. intentionally thrusts Z. aside, and forces his way past him. A. has assaulted Z.
3. A. and B. have occasion to speak to Z. A. gently lays his hand on Z.’s arm to call his attention. B. seizes Z. and forcibly turns him round. A. has not, but B. has, assaulted Z.(n) .
4. A. presents a gun at Z. in a threatening manner. Whether the gun is loaded or not, A. has assaulted Z., if in fact Z. is by A.’s action put in reasonable apprehension that A. is about to use unlawful force to him(o) .
Illustrations.
1. A. causes Z. to go within a walled space, and locks Z. in. There is another door not secured, by which Z., if he found it, could escape; but that door is so disposed as to escape ordinary observation. A. has wronged Z.(p) .
2. A. is a superintendent of police. Z. is accused of an offence for which he is not arrestable without warrant. A., without warrant, directs Z. to go to a certain place and present himself before a magistrate, and directs two constables to accompany Z. in order to prevent him from speaking to any one. Z. goes with the two constables, as directed by A. Here Z. has been wrongfully confined, and A. has wronged Z.(q) .
Illustration.
A. causes Z. to be beaten with a shoe. Z. may be entitled to substantial damages, though he has not suffered appreciable bodily hurt or pecuniary loss(r) .
Note.—It does not seem desirable to depart from the definition of assault given in the Penal Code, though that definition is needlessly elaborate. The illustrations there given likewise appear to cover all the ordinary cases. A few negative illustrations are added; they do not come under the general exception of slight harm, section 26 above, but are not within the definition at all.
Self-defence has been provided for under the head of General Exceptions (clause 27 above), and does not seem to need further mention here.
In the case of false imprisonment, as of assault, the inconvenience of having different definitions for civil and criminal purposes appears to outweigh any criticism to which the terms of the Penal Code may be open.
It appears to have been decided in the North-West Provinces that “male relatives cannot sue for damages for an assault committed by the defendant on their female relatives” (Alexander, Indian Case-law on Torts, p. 159). It is certain that no such action lies in English law, except on the ground of per quod servitium amisit. Whether it ought or ought not to lie in British India, having regard to native usage and feelings, is a question of special policy outside the draftsman’s functions.
Next would come in logical order the causes of action for trespass to servants, &c., per quod servitium amisit, with their peculiar development in modern times in the action for seducing the plaintiff’s daughter, or person in a similar relation. I do not find that such actions are in use in British India. In English law they are now regarded as anomalous in principle and capricious in operation. As to trespass by intimidation of a man’s servants, &c. (a rather prominent head in the old books of the common law), I apprehend that such matters may be left to the Penal Code.
Chapter IV.Defamation.
Preliminary Note.—In dealing with assault and false imprisonment, the definitions of the Penal Code have been followed. With regard to defamation, it is much more difficult to determine the course to be taken. The common law presents—
- (1) minute distinctions between spoken and written words or, more exactly, between communications by means leaving no visible trace and communications by writing or other permanent visible symbols, as affording a cause of action, spoken words being “actionable per se” only when they convey certain kinds of imputation;
- (2) an artificial theory of malice, now reduced in effect to the doctrine that, exceptions excepted, a man acts at his peril in making defamatory communications;
- (3) an elaborate system of exceptions, reducible, however, to sufficiently intelligible grounds of public policy and social expediency;
- (4) peculiar and somewhat anomalous rules as to the respective office of the Court and the jury in dealing with those exceptional cases which come under the title of “privileged communications.”
As to (1), the Penal Code makes no distinction between slander and libel(s) . In this I think it ought to be followed. The common law rules defining what words are and are not “actionable per se” seem to have been already disregarded in practice in suits between natives in British India.
As to (2), the Penal Code does not make wrongful intention, but does make knowing or having reason to believe that the imputation uttered will harm the reputation of the person it concerns, an essential part of the offence. It seems doubtful whether for the purpose of civil liability this caution is necessary. The test of words being defamatory or not is, according to English authority, an “external” one; the question is what their natural effect would be, not whether the utterer knew or might have known it; see per Lord Blackburn in Capital and Counties Bank v. Henty, 7 App. Ca., at pp. 771-72. Practically it can seldom make any difference in which form the question is put, but the language of the Penal Code, if applied to civil liability, would be open to misconstruction. On the other hand, the Explanations of the Penal Code, section 499, seem dangerously wide.
(3) As to exceptions, in the Penal Code (following English criminal law) truth is a justification only if the publication is for the public good. Such is not the English rule as to civil liability; the truth of the imputation, on whatever occasion and for whatever purpose made, is an absolute defence. And this appears to be accepted in civil suits in British India. The other exceptions are not free from over-definition, and, if they were adopted for civil purposes, troublesome questions might arise as to their effect on the existing law.
There are obvious inconveniences in having the criminal offence and the civil wrong of defamation differently defined. But these seem less than the inconvenience of following the Penal Code; and it seems best, on the whole, to take an independent line, with an express warning that the civil and criminal rules are to be kept distinct. If the text of the Penal Code were now adopted for civil purposes, British India would either lose the benefit of modern English jurisprudence, or (what seems more likely) the text of the Code would be strained to make it fit the English decisions.
(4) The peculiar difficulty of distinguishing questions of fact from questions of law depends on the relation of the judge to the jury in a trial by jury, and therefore does not arise in British India.
In the event of the Government of India being of opinion that the Penal Code ought to be substantially followed, these alternative clauses are submitted:—
A. Every one who defames any person within the meaning of the Indian Penal Code, s. 499, commits a wrong for which he is liable to that person.
Exceptions.
B. It is not defamation to publish in good faith any fair comment on matter of public interest or open to public criticism, or a correct and fair report of a public judicial or legislative proceeding; or to communicate in good faith to any person in a manner not in excess of the occasion any information or opinion which it is proper to communicate in the interest of that person, or of the person making the communication, or of the public.
This section does not affect the construction or application of the exceptions to s. 499 of the Indian Penal Code.
C. Saving of criminal jurisdiction as in clause 31 of the present draft.
(2) A person is said to defame another if he makes to any third person a defamatory statement concerning that other(u) .
(3) A statement is said to be defamatory which conveys concerning a person any imputation tending to bring him into hatred, contempt, or ridicule, or, being made concerning him in the way of his office, profession, or calling, tends to injure him in respect thereof.
(4) A statement may be made by spoken or written words, or by signs, or by pictorial or other representations or symbols, and either directly or by insinuation or irony(x) .
(5) A person is deemed to make to another person any statement which, knowing or having reasonable means of knowing its effect, he communicates or causes to be communicated to that person(y) .
(6) A statement is deemed to concern any person thereby designated with reasonable certainty, including any member of a definite body of persons thereby collectively designated whose individual members can be identified(z) .
Illustrations.
1. A. writes and sends a letter to B., in which he accuses B. of a criminal offence. B. opens and reads the letter. A. has not defamed B., though the letter may cause pain and annoyance to B.(a) .
2. A., having a dispute with B., makes an effigy of B., sets it up on a bamboo in a public place, calls it by B.’s name, and beats it with shoes. A. has defamed B., and the Court may award substantial damages to B. if he sues A.(b) .
3. X. has lost some goods; Z. says, “Of course A. did not steal the goods, for we all know A.’s honesty.” Such words, if in fact spoken in a manner calculated to suggest that A. did steal the goods, may be a defamation of A.
4. A. dictates to B. at Delhi a letter in Persian addressed to C. at Bombay. B., having written the letter, seals it and sends D. with it to the post office. The letter is delivered at C.’s house in Bombay. C. is away, but has authorized P. to open and read his letters. P. opens the letter, and, not knowing Persian, takes it to Q., a Persian scholar, to be translated. Q., having read the letter, explains the purport of it in English in the presence of X., an Englishman. P. forwards the letter to C. Here A. and B. have, and D. has not, made a statement of the purport of the letter to C., and P. has not, but Q. has, made the like statement to X. [But qu. whether a professional letter-writer ought to be held in India to publish the contents of documents written or read by him in the way of his business.]
5. A. is a Brahman attached to a temple at Gandharvanagar. X. says to Z., in a public place, that all Brahmans are imposters and corrupters of the Vedas. This is no wrong to A. Z. answers, “Not all Brahmans, but you say well as to those of the temple of Gandharvanagar.” This may be a wrong to A.
Note.—This clause is intended to contain the fundamental definitions. Sub-clause (1) does away with the fiction of “implied malice” or “malice in law,” a course which seems clearly authorized by Lord Blackburn’s language in Capital and Counties Bank v. Henty, 7 App. Ca. at pp. 771, 772, 782, and especially 787; and see Stephen, Dig. Cr. Law, Art. 271, and note XVI. in Appendix. Sub-clause (2), combined with the interpretation in sub-clause (5), gives the substance of existing law without the non-natural use of the words “publish” and “publication.” The phrase of the P. C., s. 499, is “makes or publishes,” but publication is not further defined. Sub-clause (3) states existing law. Sub-clause (4) abolishes (if now existing in British India) the distinction between slander and libel. As to sub-clause (5), illustrations might be multiplied indefinitely. But it is really a matter of common sense. The sub-clause might, perhaps, be safely omitted.
(2) In ascertaining any such special meaning regard is to be had to the context of which the words are part, the persons to whom and the occasion on which they were communicated, the local usage and understanding of terms, and all other relevant circumstances.
(3) When words are capable of an innocent meaning and also of a defamatory meaning, it is a question of fact which meaning they conveyed(d) .
(4) Provided that the burden of proof is in every case on the party attributing to words a meaning that exceeds or qualifies their natural and ordinary meaning; and such proof is admissible only if in the opinion of the Court the words are capable of the alleged meaning(e) .
Provided that the Court may take these or like circumstances into account in awarding damages(f) .
Illustration.
A. is the chairman of the M. Railway Company, and a chairman and director of other companies. X. and Z. are speaking of a fall in the company’s shares. Z. says, “You have heard what has caused the fall; I mean the rumour about the M. chairman having failed?” This may be a defamation of A., though such a rumour did exist, and was believed by Z. to be well founded.
Illustrations.
The conduct of a person in the exercise of any public office or in any public affairs in which he takes part is matter of public interest.
The conduct of local authorities in local administration, and of the managers of public institutions in the affairs of those institutions, are matters of public interest(g) .
A published book or paper, a work of art publicly exhibited or offered for sale, a public building, or publicly exhibited architectural design, a new invention or discovery publicly described or advertised, a public performance or entertainment, the conduct of persons in public places, are open to public comment.
[The term “privilege” has sometimes been applied to cases of this class, but wrongly: Merivale v. Carson, 20 Q. B. Div. 275.]
[* Alternative reading,—“of a public judicial proceeding or of any proceeding in either House of the Imperial Parliament or any Committee thereof, or of any public proceeding of the Council of the Governor General or any other Council established under the provisions of the Indian Councils Act, 1861(h) .”]
Illustration.
A. is present at proceedings before a magistrate in the course of which imputations are made on B.’s conduct. A. sends a substantially correct report of the proceedings to a newspaper, and the newspaper publishes it. No wrong is done to B. if A. sends the report only for the purpose of giving information to the public on a matter of general interest. But if A. sends the report from motives of ill-will towards B., this may be a wrong to B.(i) .
-
Truth in substance.
(1) If the statement is true: provided(k) that a party relying on the truth of a statement must prove the substantial truth of that statement as a whole and of every material part of it. -
Statements in course of judicial proceedings or legislative debate.
(2) If the statement is made in the course of a judicial proceeding before a competent Court, and has reference to the matter before the Court [or is made in the course of any debate or proceeding of the Council of the Governor General, or any other council established under the provisions of the Indian Councils Act, 1861(l) ].
Explanation.—For the purposes of this section the proceedings of a naval or military court-martial, or court of inquiry, or any other body lawfully authorized to take evidence with a view to a determination of a judicial nature, such court or body being constituted according to the law, regulations, or usage applicable to the subject-matter, and dealing with a matter which by such law, regulations, or usage is within its competence, and all reports and statements made in the course of naval, military, or official duty in reference to such proceedings are deemed to be judicial proceedings(m) .
- (i) in discharge of a legal, moral or social duty existing, or by the person making the statement believed in good faith to exist, of giving information in the matter of the statement to the person to whom it is made; or
- (ii) to a public servant, or other person in authority, in a subject-matter reasonably believed to be within his competence, with a view to the prevention or punishment of an offence or redress of a public grievance; or
- (iii) with a view to the reasonably necessary protection of some interest of the person making the statement; or
- (iv) with a view to the reasonably necessary protection of an interest or the proper performance of a duty common to the person making the statement and the person to whom it is made;
that statement is said to be made on a privileged occasion(n) .
(3) A statement made on a privileged occasion is presumed to have been made in good faith(o) .
(4) What is reasonably sufficient for the occasion is a question of fact to be determined with regard to the whole circumstances(o) .
Illustrations.
1. Z. has been A.’s servant, and offers himself as a servant to M. M. asks A. his opinion of Z.’s character and competence. This is a privileged occasion, and no wrong is done to Z., though A.’s account of him given to M. be unfavourable, unless Z. can prove not only that A.’s account was not true in substance, but that A. spoke or wrote, not with the honest purpose of giving information to M. which it was right that M. should have, but from personal ill-will to Z.
2. Z. is A.’s servant and a minor. A. dismisses Z. on suspicion of theft, and writes to Z.’s father explaining the grounds of his suspicion. Afterwards A. sees Z. in conversation with P. and Q., other servants of A., and warns P. and Q. against having anything to do with Z. A.’s letter to Z.’s parents is written, and his warning to P. and Q. is given, on a privileged occasion(p) .
3. A., a merchant who has dealings with B., sends Z. to B.’s office with a message. After Z. has left B.’s office B. misses a purse from the room in which Z. has been. B. goes to A. and tells him that Z. must have taken the purse. This occasion is privileged(q) .
4. A. and B. are part owners of a ship. A. hears unfavourable reports of the master’s conduct as a seaman and communicates them to B. This occasion is privileged(r) .
5. A. and B. are partners. C. is their managing clerk. X. writes a letter to the firm proposing a business transaction. C. opens the letter and submits it to A., telling A. that from his own knowledge of X. he does not think the firm ought to trust him. A. shows X.’s letter and repeats this conversation to B., and A. and B. cause a letter to be sent in the name of the firm to P., a customer of theirs, stating the circumstances and asking for information as to X.’s business reputation. P. sends an answer in which he makes, partly as from his own knowledge and partly on general information, various unfavourable statements about X. These statements concerning X. are all made on a privileged occasion.
6. Sending defamatory matter by telegraph, or on a postcard, or the communication of such matter by any means to an excessive number of persons, or to persons having no interest, or the communication by negligence to one person of matter intended for and proper to be communicated to another person, or the use of intemperate language, may make a statement wrongful, even if the occasion is otherwise privileged(s) .
7. A. and Z. are inhabitants of the same town. Z. is the executor of a friend who has left a widow and children surviving. X. is Z.’s agent in the executorship. A. says to Z. in the presence of other persons, “You and your agent are spoken of as robbing the widow and the orphan.” The occasion is privileged as regards both X. and Z., if A. intended in good faith to communicate to Z. matter which A. thought it important that Z., for the sake of his own character, should know. The question of what A.’s intention really was depends, among other things, on the circumstances of the conversation and the number and condition of the persons present(t) .
Wrongs against Good Faith.
[It is proper to mention that these clauses and the notes to them were written before Derry v. Peek (p. 264 above) had come before either the Court of Appeal or the House of Lords.]
- (a) is untrue; and
- (b) which the person making it does not believe to be true, whether knowing it to be untrue, or being ignorant whether it is true or not; and
- (c) which the person making it intends or expects to be acted upon in a certain manner by the person to whom it is made, or with ordinary sense and prudence would expect to be so acted upon; and
- (d) in reliance on which the person to whom it is made does act in that manner to his own harm;
there the person making the statement is said to deceive the person to whom it is made(x) .
(2) For the purposes of this section, a statement may be made in any of the ways mentioned in s. 32(y) of this Act, and may be made either to a certain person or to all or any of a number of persons to whom it is collectively addressed.
Explanation.—(1) A statement intended by the person making it to be communicated to and acted upon by a person is deemed to have been made to that person.
(2) Where a person acts in reliance on the statement of another, it is immaterial that he had the means of examining the truth of that statement.
(3) A statement may be untrue, though no part of it is in terms untrue, if by reason of material facts being omitted the statement as a whole is fitted to deceive(z) .
Illustrations.
1. N. draws a bill on X. The bill is presented for acceptance at X.’s office when X. is not there. A., a friend of X., who is there but not concerned in X.’s business, accepts the bill as X.’s agent. He has not in fact any authority to accept, but believes that the bill is drawn in the regular course of business, and that X. will ratify the acceptance. The bill is dishonoured when due, and Z., the holder in due course, is unable to obtain payment. A. has deceived Z., though he honestly meant to act for the benefit of all parties to the bill; for he has represented to all to whom it might be offered in the course of circulation that he had authority to accept in the name of X., knowing that he had not such authority, and Z. has incurred loss by acting on that representation(a) .
2. A., B., and C. are partners in a firm; D. and E. agree with them to form a limited company to take over the business of the firm, and to become directors jointly with A., B., and C. A prospectus is prepared and issued with the authority of A., B., C., D., and E., stating, among other things, that the consideration to be paid by the company for the goodwill of the business is Rs. 10,00,000. Z. applies for and obtains shares in the company on the faith of this prospectus. In fact the firm is insolvent, and the Rs. 10,00,000 are intended to be applied in paying its debts. The company fails and is wound up, and Z. incurs liability as a contributory. A., B., C., D., and E. have deceived Z.(b) .
3. In the case stated in the last illustration P. applies for and obtains shares on the formation of the company. Afterwards P. offers his shares for sale, and Q., having read the prospectus and relying on the truth of its contents, buys P.’s shares. The authors of the prospectus have not deceived Q., for it was addressed only to persons who might become original shareholders, and not to subsequent purchasers of shares(c) .
4. A. offers to sell his business to Z.; assures him that the annual profits, as shown by the books, exceed Rs. 5,000, and tells Z. that he may examine the books. Z., on the faith of A.’s statement, agrees to the terms proposed by A. without examining the books. If he had examined them he would have discovered, as the fact is, that the profits are much less than Rs. 5,000. This will not preclude Z. from suing A. for deceit(d) .
5. A. deals with Z., a gunsmith, and requires a gun for the use of A.’s son, B. Z., in B.’s presence, and knowing that the gun is wanted for B.’s use, warrants to A. that the gun is of good workmanship and materials and safe to use. A. thereupon buys the gun, and gives it to B. The gun is in fact badly made, and Z. knows it, and by reason thereof, the first time B. fires the gun, it bursts and wounds B. Z. has deceived B.(e) .
- (a) concerning that other’s title or interest in any property:
- (b) concerning any pretended exclusive right or interest of his own as against that other.
- (a) without reasonable and probable cause, and
- (b) acting from some indirect and improper motive, and not in furtherance of justice,
falsely accuses that other of an offence, of which offence that other is acquitted by the Court before which the accusation is made, or, having been convicted in the first instance, is ultimately acquitted on appeal by reason of the original conviction having proceeded on evidence known by the accuser to be false, or on the wilful suppression by him of material information(f) .
Explanation.—The plaintiff must prove both the absence of reasonable and probable cause, and the existence of an indirect and improper motive for the prosecution(g.) .
Note.—There are other miscellaneous wrongs which may be generally described as malicious interference with rights. I think the doctrine of Lumley v. Gye and Bowen v. Hall really comes under this head, and does not (as has been suggested) establish a sort of right in rem not to have the fulfilment of contracts made with one interfered with. To the same class belongs Ashby v. White, as explained in Tozer v. Child, 7 E. & B. 377. But I submit that the law on these questions is neither settled enough to make immediate codification prudent, nor of sufficient practical importance to make it probable that delay will do any harm.
The doctrine of Lumley v. Gye might be expressed in some such words as these:—
“A person wrongs another who wilfully, and with the design of harming that other or gaining some advantage for himself over that other, procures a third person who has entered into a contract [qu. for exclusive personal services?] with that other to break his contract, whereby that other loses the benefit of the contract.”
Wrongs to Property.
- (1) enters on any immoveable property, or causes any animal to go upon such property, or permits any animal in his possession or custody, being to his knowledge or by its kind accustomed to stray, to go upon such property, or puts, casts or impels anything in, upon, or over such property;
- (2) assumes to exercise ownership over any moveable property, or does any act which deprives the owner of its use permanently or for an indefinite time(k) ;
- (3) destroys or damages any property;
- (4) does any other act which directly interferes with the lawful possession of any property, moveable or immoveable.
Illustration.
If a pledgee with power of sale sells the pledge without the conditions being satisfied on which the power of sale is exerciseable, or a hirer of goods pledges them for his own debt, or a bailee without the bailor’s consent lends the goods in his custody to a third person, these and the like acts are trespasses(m) .
Provided also that a workman or servant does not commit a trespass by dealing with any property in the ordinary way of his employment and in a manner authorized as between himself and his employer and which he in good faith believes his employer to be entitled to authorize.
Illustrations.
1. M. obtains goods from Z. by fraud and false pretences, and, being apparent owner of the goods, purports to sell them to A., who in good faith accepts them and pays M. for them. A. is in fact dealing on behalf of P., and forthwith delivers the goods to P. M. absconds with the price. A. has wronged Z., and is liable to Z. for the value of the goods(n) .
2. A. is a tenant of land belonging to B. A. without authority, but intending to act for B.’s as well as A.’s benefit, converts part of this land into a tank. A. has wronged B., and B. need not prove that the value of the land is diminished(o) .
3. A. obtains goods by fraud and false pretences from Z. at Bombay, and sends them by railway to B. at Allahabad. The railway company’s servants deliver the goods at Allahabad to B.’s order according to the usual course of business. If the railway company has not before this delivery received any notice of an adverse claim on the part of Z., the railway company has not wronged Z.
4. Z. is the owner of 100 maunds of wheat. A. obtains this wheat from him by fraud and false pretences, and offers it for sale to B., a miller, who accepts it in good faith. B. causes the wheat to be ground in his mill together with other wheat bought by B. from the true owners. The men employed in the mill do not know from whom the wheat was bought. Here B. may have wronged Z., but the men employed in the mill have not(p) .
49. The consent of an owner to entry upon or interference with his property is called a licence,
A licence, and the revocation of a licence, may be either express or tacit.
Illustration.
A man who keeps an open shop or office thereby gives to all persons who may wish to deal with him in the way of his business a licence to enter the shop or office during business hours. If he gives up the business and turns the shop or office into a private dwelling-house, this licence is revoked.
- (1) does not bind the successors in title of the licensor;
- (2) is not assignable by the licensee;
- (3) is limited to the purposes for which and subject to the conditions, if any, on which it is given;
- (4) is revocable at the will of the licensor, unless coupled with an interest.
Explanation.—A licence is said to be coupled with an interest where it is given as part of the same transaction with the conveyance of a legal interest in some property by the licensor to the licensee, and that interest cannot be enjoyed without doing the act permitted by the licence.
Illustration.
A. sells to B. cattle which are pasturing on A.’s land, or trees growing on A.’s land. This implies a licence to B. to enter on A.’s land to take the cattle away, or to cut the trees, as the case may be, and A. cannot revoke the licence while the contract of sale is in force.
Illustrations.
1. B. is on A.’s land under a revocable licence. A. revokes the licence. A. must not remove B. from the land until B. has had a reasonable time to leave it.
2. B. has timber lying on A.’s wharf under a revocable licence. A. revokes the licence. A. must allow B. access to the wharf for a reasonable time for the purpose of removing his timber(s) .
Note.—The term “trespass” has been extended to cover every kind of wrongful interference with property. Our distinctions between trespass, conversion, &c. are obviously not applicable in British India. Simplification at least as bold as that of the present draft is a necessity.
It may be a grave question whether the strict rule that a man meddles with another’s property absolutely at his peril be altogether fitted for Indian purposes, especially in its application to immoveable property. I suggest for consideration the insertion of the words “to the damage or annoyance of the owner,” or words to the like effect, as part of the definition. So far as I am aware, the change would be only equivalent to what is the settled law of all civilized countries not under the common law, including Scotland. It is so much the case that the English law of trespass is unknown in Scotland that it has been found necessary to provide by statute against camping out in private grounds, and other things ejusdem generis: 28 & 29 Vict. c. 56, which makes the acts there described police offences. Not that other systems declare a right of “innocent passage” over a private owner’s land, but they do not provide any means, other than “self-help” at the time, of treating such passage as a wrong where there is no damage and no annoyance. What circumstances are sufficient evidence of injurious intent, e. g. whether climbing over a fence would have this effect, must be a matter of detail to be regulated according to the habits of the country.
Nuisance.
Explanation.—Special damage for the purpose of this section means some injury, obstruction, danger, or annoyance to a person, or to his property or business, consequent upon his exercise of a public right being interfered with, and distinct from the fact that it is interfered with.
Illustrations.
1. Z. unlawfully digs a trench across a high road, whereby A. and others are prevented from freely passing and repassing thereon. This is no private wrong to A. But if A., going along the road in the dark, and not knowing of the obstruction, falls into the trench and is lamed, this is a special damage for which Z. is liable to A.(u) .
2. Z. unlawfully obstructs a navigable river. By this obstruction A. is prevented from taking a certain cargo of goods to market by water, and has to take them overland at increased cost. The expense thus incurred by A. is special damage for which Z. is liable to him(v) .
3. Z. unlawfully obstructs a street in a town by conducting building operations in an unreasonable manner. A. is a shop-keeper in the same street, and by reason of the obstruction traffic is diverted from his shop, and he loses custom and profits. This is special damage for which Z. is liable to A.(x) .
4. Z. persistently obstructs a public footway which A. is in the habit of using. A. several times removes the obstruction for the purpose of passing along the way, and is put to trouble and expense in so doing. A. has no right of action against Z., for A. has not suffered any damage or inconvenience except in common with all persons using the way(y) .
5. A., B., and others, being Mussulmans, are accustomed to carry tabuts in procession along a certain public road for immersion in the sea. Z. unlawfully obstructs the road so that the tabuts cannot be carried along it in the accustomed manner. A. and B. have no right of action against Z.(z) .
- (a) by diminishing the value of that property:
- (b) by continuously interfering with his power of control or enjoyment of that property:
- (c) by causing material disturbance or annoyance to him in his use or occupation of that property(a) .
What amounts to material disturbance or annoyance is a question of fact to be decided with regard to the character of the neighbourhood, the ordinary habits of life and reasonable expectations of persons there dwelling, and other relevant circumstances(b) .
Illustrations.
1. Z. has chemical works near A.’s land, the fumes from which kill or stunt vegetation on A.’s land and reduce its selling value. Whether the land is or is not rendered less wholesome for human habitation, Z. has wronged A.(c) .
2. If Z. has a house whose eaves overhang A.’s land, or if the branches of a tree growing on Z.’s land project over A.’s land, this is a nuisance to A., inasmuch as it interferes with his powers of control and enjoyment on his own property, and also tends to discharge rain-water on A.’s land(d) .
3. Z. has a lime-kiln so near A.’s house that, when the kiln burns, the smoke enters A.’s house and prevents A. and his household from dwelling there with ordinary comfort. This is a nuisance to A.(e) .
4. Z., a neighbour of A.’s, causes bells to be rung on his land so loudly and frequently that A. cannot dwell in his house in ordinary comfort. This is a nuisance to A.(f) .
5. A., living in a street in Calcutta, complains of noises proceeding from the house of his neighbour Z. as being a nuisance to him. In deciding whether a nuisance exists or not, regard is to be had to the general habits of life of persons dwelling in cities.
Explanation.—This section does not affect the acquisition or loss of any right under the Indian Limitation Act, 1877, or the Indian Easements Act, 1882(h) .
Illustrations.
1. Z. has for some years carried on a noisy business on land adjoining a house built and occupied by A. on his own land. The noise is such as to be a nuisance to persons dwelling in the house. B., knowing these facts, buys A.’s house. Z. wrongs B. if, after B. has entered on the occupation of the house, he continues his business so as to prevent B. or his household from dwelling in the house with ordinary comfort. It is immaterial whether A., during his occupation, did or did not complain of the nuisance.
2. The facts being otherwise as in the last illustration, Z.’s business has been carried on for such a time that he may at the date of B.’s purchase have acquired a prescriptive right as against A. and persons claiming through him. Here the previous conduct of A. and his predecessors in title is material as between Z. and B.
3. Z. has for more than twenty years carried on a noisy business on land adjoining land of A.’s, on which there is not any dwelling-house. A. builds and enters on the occupation of a dwelling-house on his own land near Z.’s workshop. Z. wrongs A. if he continues his business so as to prevent A. from dwelling in the house with ordinary comfort: for the doing of acts which were not a nuisance to the occupier of A.’s land when done could not in any length of time entitle Z. to continue similar acts after they became a nuisance(i) .
Illustration.
Z. has a manufactory. The smoke from the chimneys flows into A.’s house and prevents him from dwelling there, the noise and vibration of machinery make B.’s and C.’s shops unfit for carrying on their business, and the fumes spoil D.’s growing crops. Z. has wronged A., B., C., and D.
Illustration.
A., B., and C. have dye-works on the banks of the same river, and pour noxious refuse into it to the damage of X., a riparian occupier. A. has wronged X., even if the water flowing past X.’s land would not be made fit for use by A. alone ceasing to foul the stream(l) .
- (a) permanently affects the value of the property; or
- (b) tends to establish an adverse claim of right.
Illustrations.
1. A. rents a house in a public street from B. Z. keeps his horses and carts standing in the street for long and unreasonable times, in such a manner as to be an obstruction of the street, and a nuisance to the occupiers of the house. Z. has wronged A. only, and not B.(m) .
2. A. rents a field from B., together with a watercourse passing through the field. Z., an occupier higher up the stream, fouls the water so as to be a nuisance to A. Z. has wronged both A. and B., as his acts would, if not resisted, tend to establish a claim to foul the stream as against B.
3. Z. has smelting works near A.’s land. The fumes from the works kill or spoil the trees growing on A.’s land, make it generally less fit for occupation, and diminish its selling value. Whether A. is or is not occupying the land, Z. has wronged A.
- (a) every one who actually creates or continues, or authorizes the creation or continuance of, a nuisance:
- (b) every one who knowingly suffers a nuisance to be created or continued on land in his possession(n) :
- (c) every one who lets or sells land with an existing nuisance on it(o) ; but a lessor is not liable under this section by reason only of the omission of repairs which, as between himself and the lessee, the lessee is bound to do(p) .
Explanation.—Where a nuisance is caused by a tenant’s use of property, the lessor is not liable for it by reason only that the property is capable of being so used.
Illustration.
A. lets to Z. a house, with a chimney near B.’s windows. Z. makes fires in this chimney, and the smoke thereof becomes a nuisance to B. Z. only, and not A., has wronged B., unless A. let the house to Z. with express authority to use that chimney in the manner in which Z. has used it(q) .
Note.—The subject of remedies for nuisance appears to be already sufficiently dealt with by the Specific Relief Act (I. of 1877), chaps. 9 and 10, and the Civil Procedure Code, chap. 35, and Form 101 in Sched. 4. Abatement of nuisances by the act of the party wronged without process of law is hardly in use in England, except as against infractions of semipublic rights like rights of common.
Negligence.
(2) Diligence in this part of this Act has the same meaning as due care and caution, and a person using due care and caution is said to be diligent.
(2) A person is not liable for negligence where the facts are not less consistent with diligence than with negligence on that person’s part.
(3) In determining whether one person has or has not been negligent towards another, regard is to be had to that other’s apparent means of taking care of himself(s) .
Illustrations.
1. A. occupies a warehouse in which coal is kept. The coal takes fire, and both A.’s warehouse and an adjoining warehouse belonging to B. are burnt. B. sues A. for compensation. It is a question of fact whether there has been negligence on A.’s part, either in the manner in which the coal was kept, or in the precautions used against fire, or in the endeavours made to subdue the fire when it was discovered(t) .
3. A grass bank adjoins the X. Company’s railway, and is part of the company’s property. Grass cut by the company’s servants on this bank is there deposited during a dry season, and, after this grass has been there for some time, a train passes on the line, and the grass is immediately thereafter seen to be on fire. The fire spreads across a field and burns A.’s house. A. sues the company for compensation. It is a question of fact whether the company has been negligent(x) .
4. A. is lawfully passing under a crane belonging to B., and worked by B.’s servants, which overhangs A.’s path. A bale of cotton which is being lifted by the crane falls upon A. and hurts him. It is a question of fact whether B.’s servants have been negligent in the management of the crane(y) .
5. A., while crossing a public road on foot, is run over by B.’s carriage. A. cannot recover compensation from B. without proving facts tending to show that B.’s driver was in fault rather than A., for drivers and passengers are equally bound to use due care and caution in a place where both may lawfully pass and repass(z) .
6. B. goes out riding in town with a horse he has just bought. While he is riding at a moderate pace, the horse, notwithstanding B.’s efforts to keep him in, runs away, and runs against and injures A., who is lawfully on the foot pavement. Unless B. managed the horse unskilfully, or knew it to be unmanageable, B. has not wronged A.(a) .
7. If a person riding or driving sees, or with ordinary care would see, that a blind man, an infant, or a cripple, is in the way, greater caution is required of him than if an able-bodied adult were in the same situation with regard to him(b) .
(2) A person suffering harm whereof his own negligence is the principal cause, though but for the negligence of some other person it would not have happened, is said to be guilty of contributory negligence.
(3) A person’s negligence is deemed to be the principal cause of harm which could immediately before its happening [or perhaps better, “immediately before it happened or became inevitable”] have been prevented by due care and caution on the part of that person alone.
(4) Where by this Act any person is declared to be liable as for negligence, the rules of law concerning contributory negligence are applicable.
Illustrations.
1. B. is driving on the wrong side of the road. A. is driving on the same side in the opposite direction, and with ordinary care he might keep clear of B.; nevertheless A. runs into B.’s carriage. A. has wronged B.
2. B. is the owner of a sailing vessel, which by reason of B.’s servants in charge of her failing to keep a proper look-out is in the way of A.’s steamer. If the position is such that with ordinary care the steamer might avoid a collision, and the steamer runs down the sailing vessel, A. has wronged B., notwithstanding that if B.’s vessel had been properly navigated the collision would not have happened(d) .
3. B. leaves a bullock tethered on the highway. A., driving at an incautiously fast pace, runs over and kills the bullock. A. has wronged B., for he might, with ordinary care, have avoided running over the bullock, though B. was negligent in leaving it in such a place unwatched(e) .
4. A. wrongfully places a pole across a public street. The pole is of such a size that a rider in the street approaching at a reasonable pace would see it in time to pull up. B., riding along the street at a furious pace, comes against the pole and is hurt. A. has not wronged B., for B. might have avoided harm by using ordinary care, and A. could not by any ordinary care have prevented the consequences of B.’s negligence(f) .
[5. The X. Railway Company is entitled to run trains over the line of the Z. Company. A train of company X. running on the Z. Company’s line is thrown off the rails by an obstruction placed there by the negligence of the Z. Company’s servants. M., a passenger in the train, is injured. If the driver of the train could, with ordinary care, have seen and stopped short of the obstruction, the X. Company has, but the Z. Company has not, wronged M.(g) .]
6. A. is a child of tender years, in the custody of B., who leads A. across a carriage road without using ordinary care in watching for approaching carriages. C., driving carelessly along the road, runs over both A. and B.; but B. might have avoided the accident with ordinary care. C. has not wronged A.(h) .
7. A. is a child of tender years, in the custody of B., who allows A. to go alone across the road. C., driving along the road, runs over A. Whether B. was negligent in letting A. go alone is not material to the question whether C. is liable to A., though it may be material whether C. perceived, or with ordinary care would have perceived, that A. was not capable of using the care and caution which a grown man may reasonably be expected to use(i) .
Illustration.
A. goes out shooting, and a shot fired by him accidentally wounds B. If B. had not a right to be where he was, this may be material as tending to show that A. could not be reasonably expected to know that he was likely, by firing then and there, to harm any person, but it is not material otherwise.
- (a) to rely on the diligence of others unless and until negligence is manifest;
- (b) voluntarily to incur risk in order to avoid risk or inconvenience to which one is exposed by the negligence of another, and which at the time may reasonably appear to be greater than the risk voluntarily incurred.
Illustrations.
1. A. and B. are the drivers of carriages approaching one another. Each is entitled to assume that the other will drive competently and observe the rule of the road, but if and when it becomes manifest to A. that B. is driving on his wrong side, or otherwise negligently, A. must take such precautions as are reasonably fitted, having regard to B.’s conduct, to avoid a collision.
2. A. is riding in a carriage hired by him from B. The driver provided by B. is incompetent, by reason whereof the horse runs away with the carriage towards a deep nullah. A. jumps out of the carriage to avoid being thrown down the nullah, and in so doing is injured. B. is liable to A. if, under all the circumstances, A. acted reasonably in contemplation of an apparently greater risk and in order to avoid the same(m) .
3. A. is the owner of horses kept in a stable. B. unlawfully digs a trench and places rubbish in the road giving access to the stable, which makes it difficult but not impossible to take horses out. A. attempts to lead a horse out over the rubbish, and the horse falls into the trench and is injured. It is a question of fact whether, under the circumstances, the risk was one which A. might reasonably incur. If it was, B. has wronged A., notwithstanding that A. voluntarily incurred some risk(n) .
- (a) collects, keeps, or uses any dangerous thing on land occupied or used by him:
- (b) keeps a dangerous animal:
- (c) keeps or deals with loaded firearms, explosives, poison, or any other dangerous instrument or goods, or noxious or deadly thing:
is bound to take and cause to be taken all reasonably practicable care and caution to prevent harm being thereby caused to others, and is liable as for negligence to make compensation for any harm thereby caused, unless he proves that all reasonably practicable care and caution were in fact used.
Explanations.—1. Dangerous things for the purposes of this section are fire (not being used in the ordinary way of domestic purposes), earth or water artificially collected in large quantities, explosive and inflammable matters, and any other thing likely for default of safe keeping to cause harm to neighbouring persons or property.
2. A dangerous animal for the purposes of this section is—
- (a) any animal of a kind accustomed to do mischief:
- (b) any animal of whatever kind which the person keeping it knows to be fierce, mischievous, or vicious.
3. A person who deals with a dangerous thing and is in good faith ignorant of its dangerous character is not subject to the liability declared by this section(p) .
Illustrations.
2. Sparks escape from a railway engine used by the X. Railway Company on their line, and set fire to A.’s corn in an adjoining field. The X. Company must make compensation to A., unless they prove that the best known practicable precautions were used to prevent the escape of sparks from the engines(q) .
3. A. burns weeds on his own land. Sparks from the fire are carried into B.’s growing crop and set fire to it. A. must make compensation to B., unless he proves that the fire was carried by a sudden and extraordinary wind, or in some other unusual manner which he could not, by reasonable and practicable precaution, have prevented.
4. A., a zamíndár, maintains an ancient tank on his zamíndárí for the benefit of agriculture. An extraordinary rainfall causes the tank to burst, and the water escaped therefrom carries away a building belonging to B. If A. has been diligent in maintaining the tank, and making provision against any ordinary overflow of water, A. has not wronged B.(r) .
5. A. sends a parcel containing a detonating mixture to a railway station, to be carried as goods by the railway company, without informing the company’s servants of the nature of the contents. While B., a servant of the company, is handling the box for the purpose of dispatching it by train, and with care sufficient for the safe and proper handling of ordinary goods, the contents explode and injure B. There is nothing to show the specific cause of the explosion. A. has wronged B. The explosion also damages a cart of C.’s, which has brought other goods to be dispatched by train. A. has, but the company has not, wronged C.(s) .
6. A., having left a loaded gun in his house, sends B., a young person inexperienced in handling firearms, to fetch it. A. tells B. that the gun is loaded, and directs him to handle it carefully. B. fetches the gun, and on his way back points it in sport at C. The gun goes off, and wounds C. A. has wronged C.(t) .
7. A. is a dealer in drugs. By the negligence of A.’s servant a jar of extract of belladonna is labelled as extract of dandelion, and sold on A.’s behalf to B., a retail druggist. B., in good faith, resells part of it as extract of dandelion to C., a customer, who by taking it is made dangerously ill. A. has wronged C.(u) .
- (a) any immoveable property:
- (b) any building or structure intended for human occupation or use:
- (c) any carriage or vessel intended for the conveyance of human beings, or of goods which are to be handled in that carriage or vessel(x) :
is in this and the next following section called an occupier.
(2) An occupier must keep the property occupied by him in reasonably safe condition and repair as regards—
- (a) persons using that property as of right:
- (b) persons being or passing near that property as of right:
and is liable as for negligence to any such person who is injured by want of such condition and repair(y) .
(3) A person who has delivered out of his possession to be employed for the purposes of his business any such carriage or vessel as in this section mentioned continues responsible during such employment for any want of reasonably safe condition and repair which existed at the time of his parting with the possession.
Explanation.—The existence of a defect which the usual care and skill of competent persons could not have discovered or prevented (in this section called a latent defect) is not a want of reasonably safe condition and repair, but the burden of proof is on the occupier to show that the defect which caused an injury was latent.
(4) Safe condition includes careful management.
(5) Persons using property as of right include—
- (a) servants(z) or other persons being or coming thereon in performance of a contract with the occupier;
- (b) persons being or coming thereon by the occupier’s invitation or with his consent on any lawful business.
Illustrations.
1. A. is a merchant in Bombay. His office is approached by a passage, forming part of the premises occupied by him, in which there is a trapdoor. At a time when the trapdoor is left open, and not properly guarded or lighted, B., a customer of A., comes to the office on business, and falls through the trapdoor and is injured. A. has wronged B.(a) .
2. A. digs a pit on his own land close to a highway, and does not fence it off, light the place after dark, or take any other precaution for the safety of persons using the highway. B., lawfully walking on the highway after dark, falls into the pit and is injured. A. has wronged B.(b) .
3. A., the owner of a road subject to rights of way, puts a heap of building materials on the road, and leaves them at night unwatched and unlighted. B., a person entitled to use the road, drives along the road after dark, his carriage runs against the heap, and his horse and carriage are damaged. A. has wronged B.(c) .
4. The X. Company are possessed of a dock, in which for payment from shipowners they provide accommodation for ships, including gangways between ships in dock and the shore, and staging for the use of workmen employed about ships in the dock. A. is a person having lawful business on one of the ships in the dock; to reach the ship he walks on one of the gangways provided by the X. Company. The X. Company’s servants having placed the gangway in an unsafe position, it gives way under A., and he falls into the water and is injured. The X. Company has wronged A. B. is a workman employed to paint a ship in the dock. He stands for that purpose on a staging provided by the X. Company, which is in fact unfit for such use by the negligence of the X. Company’s servants in not fitting it with ropes of proper strength. One of the ropes breaks, and B. falls into the dock and is hurt. The X. Company has wronged B.(d) .
5. A. is possessed of a bridge crossing a public road. As B. is passing along the road under the bridge, a brick falls upon him from the brickwork of the bridge and injures him. There is no specific proof of the amount of care used in making or maintaining the bridge. Unless A. proves that the fall of the brick was due to some cause consistent with due care having been used in the maintenance of the bridge, A. has wronged B.(e) .
6. A. is possessed of a lamp which is affixed to the wall of his house and projects over a public street. The fastenings of the lamp, being out of repair, give way, and the lamp falls on B., a foot-passenger in the street, and injures him. A. must make compensation to B., even if A. has employed a person whom he reasonably believed to be competent to keep the lamp in repair(f) .
Illustrations.
1. A. is possessed of land on which there is an open stone quarry. There is no right of way over the land, but people habitually pass and repass over it without interference from A. B., crossing the land after dark, falls into the quarry and is hurt. A. has not wronged B.(h) .
2. A. is possessed of a yard in which machinery is in motion, and permits B. to use a path across it for B.’s own convenience. If the danger of approaching the machinery is apparent to a person using ordinary care, A. is not under any duty towards B. to have the machinery fenced or guarded(i) .
3. A. is driving his carriage, and offers B. a seat in it. B. enters the carriage, and shortly afterwards the carriage is upset by the breaking of a bolt, and B. is thrown out and hurt. Unless A. knew the carriage to be in an unsafe condition, A. has not wronged B.(k) .
Of Damages for Civil Wrongs(l) .
Illustration.
A. wrongfully digs out and carries away a quantity of earth from Z.’s land. Z. must make compensation to A., but A. cannot claim to fix the damages by what would be the cost of replacing the earth dug out(m) .
Illustrations.
1. A. has defamed Z. A. may show in mitigation of damages that when he made the defamatory statement he believed on reasonable grounds that it was true.
2. A. has negligently pulled down a building on his own land to the damage of Z.’s adjacent land. Z. may show in aggravation of damages that A. wished to disturb Z. in his occupation and purposely caused the work to be done in a reckless manner(n) .
THE SCHEDULE.
Acts of the Governor General in Council.
| Year and Chapter. | Title or Short Title. | Extent of Repeal. |
| XII. of 1855 | An Act to enable executors, administrators, or representatives to sue and be sued for certain wrongs. | The whole as regards causes of action within this Act. |
| XIII. of 1855 | An Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong. | The like. |
| XVIII. of 1855 | An Act for the protection of judicial officers. | The like. |
| XV. of 1877 | The Indian Limitation Act, 1877. | The descriptions of suits numbered respectively 20, 21, and 33 in the Second Schedule are to be read, as regards causes of action within this Act, as if “the Civil Wrongs Act, 18,” were substituted for the references to Acts XII. and XIII. of 1855, in those descriptions respectively contained. |
printed by c. f. roworth, great new street, fetter lane, e.c.
[(a) ]Minute of 17 July, 1879, on Indian Codification, in “Minutes by Sir H. S. Maine,” Calcutta, 1890, p. 224: “Civil wrongs are suffered every day in India, and though men’s ideas on the quantity of injury they have received may be vague, they are quite sufficiently conscious of being wronged somehow to invite the jurisdiction of courts of justice. The result is that, if the legislature does not legislate, the courts of justice will have to legislate; for, indeed, legislation is a process which perpetually goes on through some organ or another wherever there is a civilized government, and which cannot be stopped. But legislation by Indian judges has all the drawbacks of judicial legislation elsewhere, and a great many more. As in other countries, it is legislation by a legislature which, from the nature of the case, is debarred from steadily keeping in view the standard of general expediency. As in other countries, it is haphazard, inordinately dilatory, and inordinately expensive, the cost of it falling almost exclusively on the litigants. But in India judicial legislation is, besides, in the long run, legislation by foreigners, who are under the thraldom of precedents and analogies belonging to a foreign law, developed thousands of miles away, under a different climate, and for a different civilization. I look with dismay, therefore, on the indefinite postponement of a codified law of tort for India.”
[(a) ]This appears, in an Act not intended for a complete code of the subject, a desirable precaution. A similar clause was inserted in the English draft Criminal Code by the revising Commission.
[(b) ]This clause is inclusive, not exclusive: the specific definitions of, e.g., assault, trespass, and defamation stand on their own ground. By harm I mean what English law books commonly call actual damage.
[(c) ]Exceptions are dealt with under Wrongs to Property. (Clause 47 below.)
[(d) ]For the general principles see Fergusson v. Earl of Kinnoul, 9 Cl. & F. 251; Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93; Heaven v. Pender, 11 Q. B. D. 503.
[(e) ]Ponnusámy Tévar v. Collector of Madura, 3 Mad. H. C. 53.
[(f) ][As to the relation of the period of limitation to the cause of action, see Act XV. of 1877, s. 24, and Darley Main Colliery Co. v. Mitchell, 11 Ap. Ca. 127.]
[(g) ]This is not a repetition: for there may be consequences, not ordinary, which a man nevertheless foresees, or which, in the particular case, a commonly prudent man in his position ought to foresee. Illustrations 4 and 8 are cases of this kind.
[(h) ]Vandenburgh v. Traux, 4 Denio (N. Y.), 464, with change of local colouring.
[(i) ]Illidge v. Goodwin, Lynch v. Nurdin, cited in Clark v. Chambers, 3 Q. B. D. 331. The Squib case (Scott v. Shepherd) seems hardly worth adding to these.
[(k) ]Lynch v. Nurdin, 1 Q. B. 29. Mangan v. Atterton, L. R. 1 Ex. 239, can hardly be supported against this.
[(l) ]Case put by Denman C. J. in Lynch v. Nurdin.
[(m) ]Hill v. New River Co. 9 B. & S. 303. The distinction between this and the next case is possibly too fine.
[(n) ]Cf. Sharp v. Powell, L. R. 7 C. P. 253. But illustrations 8 and 9 would perhaps be better omitted.
[(o) ]Cox v. Burbidge, 13 C. B. N. S. 430.
[(p) ]Les v. Riley, 18 C. B. N. S. 722.
[(q) ]Tillett v. Ward, 10 Q. B. D. 17. But query whether desirable to adopt this for India. An experienced judicial officer (Punjab) regards it as “very queer law and of doubtful equity.” As to impounding, Ben. Act IV. of 1866, s. 71 (and other local Acts).
[(r) ]This is intended to supersede Acts XII. and XIII. of 1855, and if adopted, will also involve some slight amendment of Act XV. of 1877 (Limitation). The maxim “actio personalis moritur cum persona,” rests on no intelligible principle, and even in England is more than half falsified by particular exceptions. I submit (after Bentham) that there is no place for it in a rational and simplified code. I do not overlook the consequence that in some cases persons who would have a right to compensation under Act XIII. of 1855 would, under this clause, have none. But I think that the rights created by Lord Campbell’s Act, and Act XIII. of 1855, which copies it, are anomalous and objectionable, so far as they produce results different from those which would be more simply produced by abolishing the common law maxim.
[(s) ]The old rule, or supposed rule, as to the civil remedy being “merged in the felony,” is all but exploded in England, and the H. C. of Calcutta, as long ago as 1866, decided against its adoption in India; see Illust. 2; Shama Churn Bose v. Bhola Nath Dutt, 6 W. R. (Civil Ref.) 9. Cf. Víranna v. Nagáyyah, I. L. R. 3 Mad. 6, following the H. C. of Calcutta.
[(t) ]See Girish Chunder Das v. Gillanders, Arbuthnot & Co. 2 B. L. R. 140, O. C.; Rani Shamshoondri Deba v. Dubhu Mundul, 2 B. L. R. 227, A. C. Both these cases seem to turn on a question of fact whether under all the circumstances the defendant had authorized or ratified the act complained of.
[(u) ]Some persons whose opinion is entitled to weight think it would be better not to make any new law on the question of employers’ liability. In the event of this opinion being adopted, I think the whole clause ought to be omitted. It seems impossible formally to adopt English law as it stood before the Act of 1880. “For the master’s benefit” is a common phrase in the authorities; but I think “purposes” a better word, as often the act or default of the servant does not and cannot produce any present benefit to the master, but produces great and evident loss, e.g., a railway collision. It was once supposed that deceit or wilful trespass by a servant, not authorized or ratified by the master, did not make the master liable. But modern authorities, such as Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, have exploded this notion.
[(x) ]This is a large alteration of English law, and intended so to be. The Employers’ Liability Act of 1880 is an awkward and intricate compromise, and evidently will not serve as a model. The final proviso is only existing law.
[(y) ]This seems needful: otherwise, as suggested in some of the English authorities, if the stable-boy leave a pail about, and the coachman breaks his shin over it in the dark, the coachman shall have an action against the master, &c., which would be inconvenient. The real question is, what risks is it, on the whole, reasonable to expect the servant to take as being naturally incidental to his employment?
[(z) ]Compulsory pilotage is the chief—I think the only—case to which this exception applies.
[(a) ]Gregory v. Piper, 9 B. & C. 591.
[(b) ]Storey v. Ashton, L. R. 4 Q. B. 476, and cases there cited. I should prefer to say: “A. is not liable to E., and he is liable to C. only if it appears as a fact that B.’s deviation was not such that he had ceased to be in the course of his employment as A.’s servant when he ran over C.;” cf. Whatman v. Pearson, L. R. 3 C. P. 422; though this would involve some innovation. I think the distinctions in the English cases are too fine.
[(c) ]Bayley v. Manchester, Sheffield & Lincolnshire R. Co. L. R. 8 C. P. 148.
[(d) ]M‘Kenzie v. McLeod, 10 Bing. 385. Strictly the question here is one of fact. But the Court evidently not only acquiesced in but approved the finding of the jury. A Punjab officer says the illustration is too refined, “unsuited to India, and objectionable on principle in relation to that country.” No harm could be done by omitting it.
[(e) ]Cf. Allen v. L. & S. W. R. L. R. 6 Q. B. 65, 69. In the case here supposed a private person would in India be entitled to arrest the thief, if theft were really committed in his view: Cr. P. C. 59.
[(f) ]Intended to reverse a case of Turner v. S. P. & D. R. Co. in the H. C. Allahabad, not reported (Alexander, p. 38); cf. Tunney v. Midland R. Co. L. R. 1 C. P. 291. Railway companies will not approve of the change, but it would leave them better off than they are on the Continent of Europe.
[(g) ]Contra, Farwell v. Boston & Worcester Railroad Corporation, 4 Met. 49, Bigelow L. C. 688. On principle, I think that, if there is to be any exception at all in the master’s favour, it should go as far as this. It seems to me that the engine-driver and the pointsman are as much in one and the same employment as the engine-driver and the guard, and that the reasoning of the Massachusetts case is, on the facts of that case, correct. But the Employers’ Liability Act, 1880, s. 1, sub-s. 5, appears to reverse the common law rule in this very point. I do not believe it possible to fix the limits of the exception satisfactorily, and I would submit whether it is worth keeping at all, except as regards domestic servants.
[(h) ]Muhammad Yusuf v. P. & O. Co., 6 Bombay H. C. 98, Alexander, p. 37.
[(i) ]See Ganesh Singh v. Ram Raja, 3 B. L. R. 441, P. C.
[(k) ]It may be worth considering whether the rule that judgment against some or one of joint wrong-doers is a bar to any suit against the others ought to be preserved in British India. It is generally not followed in the United States. (Cooley on Torts, 138.)
[(l) ]Adamson v. Jarvis, 4 Bing. 66; Betts v. Gibbins, 2 A. & E. 57.
[(h) ]Act XVIII. of 1850, with some condensation. As to criminal prosecution, Cr. P. C. 197. This, of course, does not apply to such a case as that of taking the wrong man’s goods, which is not an execution of the order. In criminal law the exception is wider, P. C. 79. For the English law and authorities, see Scott v. Stansfield, L. R. 3 Ex. 220. The question of limitation of suits for judicial acts is left to stand over. Provision in that behalf should perhaps come under the title of Remedies.
[(i) ]Pralhád Máhárudra v. A. C. Watt, 10 B. H. C. 346; Meghraj v. Zakir Hussain, I. L. R. 1 All. 280.
[(k) ]Vithobá Malhárí v. Corfield, 3 B. H. C. Appendix.
[(l) ]Vináyab Disákar v. Báí Itchá, 3 B. H. C. Appendix, 36.
[(m) ]Collector of Sea Customs v. Punniar Chithambaram, I. L. R. 1 Mad. 89.
[(n) ]Ragunâda Rau v. Nathamuni, 6 M. H. C. 423.
[(o) ]Chunder Narain Singh v. Brijo Bullub Gooyee (A. C.), 14 B. L. R. 254. But in Seshaiyangar v. R. Ragunatha Row, 5 M. H. C. 345, and the very similar case of R. Ragunáda Rau v. Nathamuni Thathamáyyangár, 6 M. H. C. 423, it is assumed that the making of an order of the same kind under the similar general provisions of the Cr. P. C. 308, is a judicial act within the meaning of Act XVIII. of 1850. I cannot reconcile these authorities, and submit for consideration which view is to be preferred. The Bengal case is the later (1874), and the Madras cases were cited in it.
[(p) ]The words “regularly and in good faith” are meant to cover what the English authorities on deprivation of office, expulsion from a club, and the like, call observing the rules of natural justice: Inderwick v. Snell, 2 Mac. & G. 216.
[(q) ]Fisher v. Keane, 11 Ch. D. 353.
[(r) ]Labouchere v. Wharncliffe, 13 Ch. D. at p. 352; Daukins v. Antrobus, 17 Ch. Div. 615.
[(s) ]Dhurmchund v. Nanabhaee Goobalchund, 1 Borr. 11, sed qu. See Bhugwan Meetha v. Kasheeram Govurdhun, 2 Borr. 323. The better opinion seems to be that suits for loss of caste are not to be allowed. This illustration should then be omitted; and the proper place for the rule that a suit for loss of caste as such does not lie would seem to be the title of defamation and similar wrongs.
[(t) ]This is intended to cover the cases of masters of vessels, parents, guardians, and persons in loco parentis. The provisions of 21 Geo. 3, c. 70, ss. 2, 3, will, I presume, be unaffected by this. Illustrations of the authority of a parent or schoolmaster are purposely omitted. Custom and feeling in these things vary from time to time, and from place to place. It may not be practicable to judge European, Hindu, and Muhammadan parents or masters by precisely the same standard.
[(u) ]Maude & Pollock, Merchant Shipping, I. 127, 4th ed.
[(v) ]Cases in H. L. on compensation, passim.
[(x) ]Biscoe v. G. E. R. Co., 16 Eq. 636.
[(y) ]Rajmohun Bose v. E. I. R. Co. 10 B. L. R. 241. [Sed qu. see London & Brighton R. Co. v. Truman, 11 App. Cas. 45.]
[(z) ]E.g., it would be manifest want of due care if on moving from a shorter range A. had omitted to put up his sight, and the unexplained fact of making a ricochet at a short distance, such as 200 yards, might well be held to show want of due care, though it might be explained as the result of something beyond the shooter’s control, such as, for example, a defective cartridge; while, on the other hand, it would, at a long range, such as 1,000 yards, of itself go for very little, being an accident which may happen even to a good marksman.
[(a) ]Cf. Brown v. Kendall (Supreme Court, Massachusetts), 6 Cush. 292.
[(b) ]“Ordinary right” is a rather vague phrase, but I cannot find a better one. The use of larger words like “legal rights” or “any right” would make this overlap Clause 20, and perhaps raise difficulties.
[(c) ]Y. B. 11 H. IV. 47, pl. 21.
[(d) ]See L. R. 10 Ex. 267.
[(e) ]I had written “for a neighbouring village,” after Chasemore v. Richards, but I am told by an Indian judicial officer (Punjab) that for Indian purposes it would not do to go so far, and that practice is in fact otherwise. Another (also Punjab) would omit both this and Illust. 5.
[(f) ]This is commonly supposed not to be the law of England. Lord Wensleydale in Chasemore v. Richards appears to have thought that it ought to be, but was not (7 H. L. C. at p. 388); but I know of no distinct authority that it is not so; the Roman law was so, and the law of Scotland is stated to be so (Bell’s Principles, referred to by Lord Wensleydale); and I submit that on principle it ought to be so defined. The question of policy must, of course, be carefully considered.
[(g) ]Rogers v. Rajendro Dutt, 8 Moo. I. App. 103.
[(h) ]Cf. P. C. ss. 87, 88, 89. For the purposes of civil law it seems desirable to consolidate and simplify these rather minute provisions; on the other hand, if the points are not expressly dealt with, awkward questions might arise whether the exceptions were the same as in the Penal Code or not.
[(i) ]Cf. P. C. 92. Illustrations 2 to 5 correspond with those of the Penal Code.
[(j) ]Cf. P. C. 95. As regards civil liability, this is not at present the law of England, but it is the practice and understanding of English people.
[(k) ]Undoubted English law; but unless it has become familiar in India, qu. whether it be desirable to give prominence to it.
[(l) ]Holford v. Bailey, Ex. Ch. 13 Q. B. 426, 444, 18 L. J. Q. B. 109, 112.
[(m) ]See per Holt C. J., Cole v. Turner, 6 Mod. 149.
[(n) ]Coward v. Baddeley, 4 H. & N. 478.
[(o) ]Parke B. in R. v. St. George, 9 C. & P. 493.
[(p) ]Messrs. Morgan and Macpherson’s note on P. C. 340.
[(q) ]Parankusam Narasaya Pantula v. Stuart (1865) 2 Mad. H. C. 396. See Mr. J. D. Mayne’s note to P. C. 340.
[(r) ]Bhyran Pershad v. Isharee (1871) 3 H. C. N. W. P. 313. Beating with slippers was the argument administered to certain atheists by the disciples of Śankara Áchárya; and, for whatever reason or combination of reasons, it is understood to be a gross form of insult in modern times. The law and practice are well settled in England.
[(s) ]See Parvals v. Mannár, I. L. R. 8 Mad. 175.
[(u) ]7 App. Ca. 771.
[(x) ]It seems now doubtful in British India how far the English distinction between slander and libel is adopted. Compare Nilmadhab Mookerjee v. Dookeeram Khottah, 15 B. L. R. 151, with Káshirám Krishna v. Bhadu Bápúji, 7 B. H. C. (A. C.) 17.
[(y) ]R. v. Burdett, 4 B. & Ald. 95; Stephen, Dig. Cr. L., Art. 270; Blake Odgers on Libel and Slander, ch. vi.
[(z) ]See Stephen, Dig. Cr. L., Art. 267.
[(a) ]Muhammad Ismail Khan v. Muhammad Tahir, 6 N. W. P. 38. Familiar law in England.
[(b) ]Pitumber Doss v. Dwarka Pershad, 2 N. W. P. 435.
[(c) ]See the law explained and discussed in Capital and Counties Bank v. Henty, 7 App. Ca. 741.
[(d) ]See the chapter of “Construction and Certainty” in Blake Odgers’ Digest, and the illustrations there collected.
[(e) ]The rules as to burden of proof have been produced by the need for defining what is the proper direction for a jury. It may be a question whether it is desirable to make them formally binding on judges deciding without juries.
[(f) ]Watkin v. Hall, L. R. 3 Q. B. 396. This is only the developed statement of the principle of the common law that, certain occasions excepted (and subject to the rule of special damage in slander, which it is proposed here to abrogate), a man defames his neighbour at his peril. It may seem a hard rule, but it is now well settled in England, and the general exception of cases of trifling harm (clause 26 of this draft) would be at least as effectual to prevent it from having oppresive results as the English rules limiting the right of action for slander as distinguished from libel.
[(g) ]See Purcell v. Sowler, 2 C. P. Div. 215.
[(h) ]24 & 25 Vict. c. 67.
[(i) ]Stevens v. Sampson (1879) 5 Ex. Div. 53. It was decided only in 1868 (Wason v. Walter, L. R. 4 Q. B. 73), that a fair report of a parliamentary debate cannot be a libel. Reports, &c. published by authority of either House are protected by statute 3 & 4 Vict. c. 9, which I presume applies to British India. Perhaps it is needless to refer expressly to that Act here. The High Courts would, I suppose, apply Wason v. Walter to fair reports of proceedings in the Governor General’s Council, &c. The case is not provided for in sect. 499 of the Penal Code, and I cannot find any other Indian authority, legislative or judicial, on the point.
[(k) ]I am not sure that the proviso is necessary under a rational system of pleading.
[(l) ]Qu. as to the policy of applying this rule to India to the full extent given to it in England. See Abdul Hakim v. Tej Chander Mukarji, I. L. R. 3 All. 815 (statements in a petition preferred in a judicial proceeding held to be protected only if made in good faith): also Hinde v. Bandry, I. L. R. 2 Mad. 13, which does not decide the point, but declines to assume that the English rule holds. The vague phrase, “has reference,” is the result of Munster v. Lamb, 11 Q. B. Div. 588, which decides that an advocate’s words are not actionable if they have anything to do with the case; they need not be relevant in any more definite sense. Words spoken by a judge in his office fall within the more general exception of judicial acts (clause 16 above). See also as to the use of the word “relevant” the judgment of Lord Bramwell (then a member of the C. A.) in Seaman v. Netherclift, 2 C. P. D. at p. 59. As to speeches in Council, the reason of the thing suggests that they must be privileged, but I do not find any authority.
[(m) ]It is not free from doubt whether reports made in the course of military (or other official?) duty, but not with reference to any pending judicial proceeding, are “absolutely privileged,” or are only ordinary “privileged communications,” i.e., are protected only if made bonâ fide. This clause is intended to leave the unsettled points at large.
[(n) ]There is some temptation to get rid of the term “privileged occasion” altogether: but as it would in any case persist in forensic usage, and is certainly convenient for separating the two distinct questions of the character of the occasion, and whether it was legitimately used, it seems best to keep it in the draft.
[(o) ]These sub-clauses are perhaps unnecessary.
[(p) ]James v. Jolly, Blake Odgers, 212; Somerville v. Hawkins, 10 C. B. 583, 20 L. J. C. P. 131.
[(q) ]Amann v. Damm, 8 C. B. N. S. 597, 29 L. J. C. P. 313.
[(r) ]Concessum, Coxhead v. Richards, 2 C. B. 569, 15 L. J. C. P. 278.
[(s) ]Williamson v. Freer, L. R. 9 C. P. 393; Reg. v. Sankara, I. L. R. 6 Mad. 381 (notice of putting out of caste sent on a postcard).
[(t) ]Davies v. Snead (1870) L. R. 5 Q. B. 608 (with some doubt as to the verdict).
[(u) ]The definition of cheating in the Penal Code, s. 415, is very wide, yet it does not completely cover the ground of deceit as a civil wrong. For in some cases an action for deceit will lie without any bad intention, and even in spite of good intention, on the part of the defendant (Polhill v. Walter, 3 B. & Ad. 114), the principle being that if a man takes on himself to certify that of which he has no knowledge, even in the honest belief that he is acting for the best, he shall answer for it if the fact is otherwise. On the other hand, the Penal Code does cover all ordinary cases of fraud, and the once vexed question as to the responsibility of a principal in tort for the fraud of his agent does not seem easy to treat as open in British India in the face of sect. 238 of the Contract Act, though that enactment does not directly settle it.
[(x) ]It has been suggested that there may be deceit by concealment of facts without any statement at all. Concealment, or even non-disclosure, may avoid a contract; in some classes of contracts a very strict duty of disclosing material facts is imposed by law; but I am not aware that a mere omission to give information has ever been treated as an actionable wrong, even in those cases where a contract “uberrimae fidei” has created a special duty of giving it. Of course, the remedy ex contractu is better, and this may account for such concealments and non-disclosures not being treated as torts. However, I believe that these clauses as drafted go to the full extent of the authorities.
[(y) ]The clause defining defamation.
[(z) ]See per Lord Cairns in Peek v. Gurney, L. R. 6 H. L. at p. 403.
[(a) ]Polhill v. Walter, 3 B. & Ad. 114. Doubt is expressed whether this be a suitable illustration for Indian use.
[(b) ]Peek v. Gurney, L. R. 6 H. L. 377.
[(c) ]Ibid.
[(d) ]On this point, see Redgrave v. Hurd, 20 Ch. D. 1. It is pointed out that Explanation 2, and this illustration, are hardly consistent with the exception to s. 19 of the Contract Act. That exception is not in accordance with English law as now settled, and ss. 17—19 are generally not very satisfactory.
[(e) ]Langridge v. Levy, 2 M. & W. 519, 4 M. & W. 338.
[(f) ]Per Bowen L. J., Abrath v. N. E. R. Co., 11 Q. B. D. 440, 455. This case [since affirmed in H. L. 11 App. Ca. 247] is the latest authority in the Court of Appeal, and defines the cause of action carefully and completely. The condition as to the proceedings having terminated in favour of the accused is in British India complicated by the system of appeals in criminal jurisdiction. See Alexander, Indian Case-Law on Torts, 130, 131. It does not seem desirable to depart from the common law as laid down in Abrath v. N. E. R. Co. without evident necessity; but some provision has to be made for the case of a conviction being reversed. That which I submit is intended to represent the better Anglo-Indian opinion upon this point.
[(g.) ]“Knowing that there is no just or lawful ground for his accusation” (after P. C. 211) has been suggested, and might be a good simplification to replace the two sub-clauses (a) and (b). The draft follows the language of recent English authority. The explanation will have to be recast if the body of the clause is altered as suggested. The English authorities on malicious prosecution seem to be applicable in British India; see 11 B. L. R. 328.
[(h) ]That malicious abuse of civil process may be actionable, see Raj Chunder Roy v. Shama Soondari Debi, I. L. R. 4 Cal. 583. In this class of cases, as distinguished from malicious prosecution, special damage must always be shown. See Bigelow, L. C. 181, 206. I do not think it would be desirable to add illustrations to this clause; at all events not without intimate knowledge of Anglo-Indian judicial proceedings. The same remark applies to the clause on malicious prosecution.
[(i) ]See note at the end of this chapter.
[(k) ]Per Bramwell B., Hiort v. Bott (1874) L. R. 9 Ex. 86, 89; cf. the judgment of Thesiger L. J. in Jones v. Hough (1880) 5 Ex. D. 115, 128.
[(l) ][This probably goes beyond settled English authority. But it is by no means certain that in England a servant having the custody of a chattel out of his master’s presence or the protection of his house cannot sue a trespasser in his own name; see p. 304 above.]
[(m) ]Donald v. Suckling, L. R. 1 Q. B. 585, is the modern leading case.
[(n) ]Hollins v. Fowler, L. R., 7 H. L. 757.
[(o) ]Tarini Charan Bose v. Debnarayan Mistri, 8 B. L. R. App. 69. If the conversion were proved to be beneficial to the property, quaere.
[(p) ]As to these exceptions, see the opinion of Blackburn J. in Hollins v. Fowler, L. R. 7 H. L. at pp. 766—8, which seems to favour making them wide enough to protect the miller or spinner, if acting in good faith and without purporting to acquire any interest in the corn or cotton beyond that of bailee for a special purpose without notice of the true owner’s claim, as well as his servants; and as to carriers, cf. Sheridan v. New Quay Co., 4 C. B. N. S. 618. To give full effect to Lord Blackburn’s opinion the proviso would have to protect all persons handling the goods of others in the way of their business. Lord Blackburn himself points out that this would go beyond existing authority. Whether it should be done is submitted as a question of policy.
[(q) ]Chapter VI. of the Easements Act (V. of 1882) deals with licences as regards immoveable property only. It is submitted that, inasmuch as a licence does not create an interest in property, but merely excuses what would otherwise be a trespass, the subject belongs to the law of torts more properly than to the law of easements. This being so, and the local extent of the Easements Act being limited, I leave the matter to the consideration of the Government of India. The two sets of clauses are intended to declare the same law, and I do not know that any great harm would come of having both in force over a limited extent of territory.
[(r) ]Great trouble has been caused in the United States by the untimely revocation of parol licences to erect dams, divert watercourses, and the like; Cooley on Torts, 307—312; and in some cases the law has been strained to confer rights on the licensees under the doctrine of estoppel or part performance. I do not know whether similar difficulties are to be apprehended in British India.
[(s) ]See Cornish v. Stubbs (1870) L. R. 5 C. P. 334, 339; and Mellor v. Watkins (1874) L. R. 9 Q. B. 400.
[(t) ]Patrick v. Colerick, 3 M. & W. 483, explaining Blackstone’s statement, Comm. iii. 4, which denies the right of entry on a third person’s land for capture, except where the taking was felonious. The plea in Patrick v. Colerick has the phrase “fresh pursuit;” the Court do not say anything of this being a necessary condition. But I suppose recapture should be, if not strictly on fresh pursuit in every case, yet within a reasonable time. English authorities are scanty on this point. There seem to be many modern American cases.
[(u) ]Y. B. 27 H. VIII. 27, pl. 10.
[(v) ]Rose v. Miles, 4 M. & S. 101 [16 R. R. 405].
[(x) ]Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281; this has been thought to be overruled by Ricket v. Metropolitan R. Co. L. R. 2 H. L. 175 (see at pp. 188, 199); per Willes, J., Beckett v. Midland R. Co., L. R. 3 C. P. 100. But this again is difficult to reconcile with the principle of Lyon v. Fishmongers’ Co., 1 App. Ca. 662; see Fitz v. Hobson, 14 Ch. D. 542. Ricket’s case is perhaps best treated as an anomalous decision on the construction of a statute with regard to particular facts; the Court below seem to have thought the obstruction was trifling. Wilkes’s case has been followed by the Supreme Court of Massachusetts; Stetson v. Faxon, 19 Pick. 47; cp. Benjamin v. Storr, L. R. 9 C. P. 400.
[(y) ]Winterbottom v. Lord Derby, L. R. 2 Ex. 316.
[(z) ]Satku Valad Kadir Sausare v. Ibráhim Aga Valad Mirzá Agá, I. L. R. 2 Bom. 457, where English authorities are well collected. S. P. Gehanáji bin Kes Patil v. Ganpati bin Lakshuman, ibid. at p. 469; Karim Buksh v. Budha, 1 All. 249. Jina Ranchhod v. Jodhá Ghellá, 1 Bom. H. C. 1, appears to be imperfectly reported.
[(a) ]It will not escape observation that to some extent the definition of nuisance overlaps that of trespass (e. g., the overhanging eaves in Illust. 2 seem to constitute a continuing trespass [though not the branches: Lemmon v. Webb, ’94, 3 Ch. 1]). This is so in England and all common law jurisdictions, and it does not produce any difficulty or inconvenience that I know of.
[(b) ]See Walter v. Selfe, 4 De G. & Sm. 315; Salvin v. North Brancepeth Coal Co., L. R. 9 Ch. 705.
[(c) ]St. Helen’s Smelting Co. v. Tipping, 11 H. L. C. 642.
[(d) ]F. N. B. 184 d; Penruddock’s case, 5 Co. Rep. 100 b; Fay v. Prentice, 1 C. B. 829; Earl of Lonsdale v. Nelson, 2 B. & C. at p. 311; cp. Harrop v. Hirst, L. R. 4 Ex. 43, an example which must be adapted for Indian use, if at all, only on the spot, and with the light of local knowledge.
[(e) ]Aldred’s case, 9 Co. Rep. 59 a; Walter v. Selfe, note (b); and other modern brick-burning cases, e.g. Bamford v. Turnley, 3 B. & S. 66.
[(f) ]I do not know whether bellringing is common in India. Local knowledge may suggest something more probable and apt. Soltau v. De Held, 2 Sim. N. S. 133. This seems to cover a fortiori the cases of noise and vibration of machinery, letting off fireworks, &c.
[(g) ]In other words, the old doctrine that a man who “comes to a nuisance” cannot complain (Blackst. ii. 403) is not now law; St. Helen’s Smelting Co. v. Tipping, and other recent authorities.
[(h) ]Qu. Can prescriptive rights be acquired in British India otherwise than under one of these Acts? If so, the saving words should be made to cover them.
[(i) ]Sturges v. Bridgman, 11 Ch. D. 852.
[(l) ]Wood v. Waud, 3 Ex. 748; Crossley v. Lightowler, L. R. 2 Ch. 478.
[(m) ]Mott v. Shoolbred, L. R. 20 Eq. 22.
[(n) ]White v. Jameson, L. R. 18 Eq. 303.
[(o) ]Rosewell v. Prior, 12 Mod. 635; Todd v. Flight, 9 C. B. N. S. 377; Nelson v. Liverpool Brewery Co., 2 C. P. D. 311, and cases there cited. See, too, Gandy v. Jubber (undelivered judgment of Ex. Ch.), 9 B. & S. 15.
[(p) ]It seems the better opinion that the lessor’s knowing of the nuisance at the time of letting does not make any difference, unless he actually authorizes its continuance; Pretty v. Bickmore, L. R. 8 C. P. 401; Gwinnell v. Eamer, L. R. 10 C. P. 658.
[(q) ]Rich v. Basterfield, 4 C. B. 783.
[(r) ]As this point has been raised and decided (Raj Koomar Singh v. Sahebzada Roy, I. L. R. 3 Cal. 20), it may be worth while to deal with it in the Bill. I do not find that it is noticed in the last revision of the Civil Procedure Code.
[(s) ]It is not easy to formulate, as a proposition of law, what amounts or does not amount to “evidence of negligence.” Still, as there is a question of law, some criterion must be assumed to exist, and the case of Hammack v. White (11 C. B. N. S. 588, also in Bigelow, L. C. on Torts) contains something like an authentic statement of it, which is here followed. The cases to which it seems not to apply (such as Byrne v. Boadle, 2 H. & C. 722, and in Bigelow) are really cases of special liability where the burden of proof is on the defendant.
[(t) ]M‘Cully v. Clark, ap. Bigelow, L. C. 559.
[(x) ]Smith v. L. & S. W. R. Co., L. R. 5 C. P. 98, 6 C. P. 14, a case in which both Courts (C. P. and Ex. Ch.) held with some difficulty that there was evidence of negligence; cf. the later Indian case of Halford v. E. I. R. Co., 14 B. L. R. 1, O. C., where the decision seems to be one of fact on conflicting evidence.
[(y) ]Scott v. London Dock Co., 3 H. & C. 596, 34 L. J. Ex. 220.
[(z) ]Cotton v. Wood, 8 C. B. N. S. 568, 29 L. J. C. P. 333. Probably this kind of case is the origin of the statement sometimes met with (which as a general proposition is evidently wrong in principle) that it lies on the plaintiff in the first instance not only to prove negligence on the defendant’s part, but to disprove contributory negligence on his own. [See now Wakelin v. L. & S. W. R. Co., 12 App. Ca. 41, 47.]
[(a) ]Hammack v. White, 11 C. B. N. S. 588, and in Bigelow.
[(b) ]Illust. 7 is the concrete statement of sub-clause 3. I know no case exactly in point, but I think this must be the law.
[(c) ]This clause was drafted before the decisions of the C. A. and the House of Lords in The Bernina, 12 P. D. 58; Mills v. Armstrong, 13 App. Ca. 1. The words “or of a third person,” which were inserted with an expression of doubt, would now have to be omitted, and the law as now laid down should be more explicitly declared.
[(d) ]Tuff v. Warman, 2 C. B. N. S. 740, in Ex. Ch. 5 C. B. N. S. 573, 27 L. J. C. P. 322.
[(e) ]Davies v. Mann, 10 M. & W. 546. The animal in that case was a donkey.
[(f) ]Butterfield v. Forrester, 13 East 60 [10 R. R. 433.]
[(g) ]Armstrong v. L. & Y. R. Co., L. R. 10 Ex. 47, where the decision seems to be put on the ground of proximate cause. [But see now Mills v. Armstrong, 13 App. Ca. 1. The true conclusion in the case put seems to be that M. has a right of action against both companies.]
[(h) ]Waite v. N. E. R. Co., Ex. Ch. E. B. & E. 719, 28 L. J. Q. B. 258 (1859). Here the proximate cause of the harm is the negligence of the child’s custodian, not of the other party, who is entitled to assume that the custodian will use ordinary care for both the child’s safety and his own.
[(i) ]There are many American decisions on points of this kind, some one way and some the other; O. W. Holmes, the Common Law, 128, Bigelow L. C. 729. Putting aside the [now overruled] doctrine of “imputed negligence” as irrational, it would seem that the real question is whether the defendant should have known that he had to do with a helpless or comparatively helpless person, to whom therefore more than ordinary care was due (clause 62, sub-clause 3, above).
[(k) ]The Bywell Castle, 4 P. Div. 219; other authorities collected in Marsden on Collisions at Sea, pp. 6, 7. The rule is of importance in maritime law, and may be of importance in other cases; cf. Wanless v. N. E. R. Co., L. R. 7 H. L. 12; cf. 3 App. Ca. 1193.
[(m) ]In the summer of 1883 several passengers, including two English judges, were in a precisely analogous situation in a runaway car on the Northern Pacific Railway. Ultimately those who did not jump out came to less harm than those who did. But surely it could not be maintained that it was contributory negligence to jump out under the circumstances. In some cases it may be prudent even to run a very great risk, as to jump from the roof or top windows of a house on fire.
[(n) ]Illustration 3 is Clayards v. Dethick, 12 Q. B. 439. Clayards v. Dethick is disapproved by Lord Bramwell; see appendix to Horace Smith on Negligence, 2nd ed. Mr. Horace Smith thinks Clayards v. Dethick is right notwithstanding, and I agree with him.
[(o) ]The rule in Rylands v. Fletcher, L. R. 3 H. L. 330, that a man keeps dangerous things at his peril (except as regards vis major, Nichols v. Marsland, 2 Ex. D. 1, &c.), seems needlessly harsh. The extent of the exceptions made in later decisions shows that it is accepted with reluctance. It has not been generally followed in the United States, and in British India one important application of it has been disallowed as unsuited to the facts and conditions of Indian land tenure; Madras R. Co. v. Zemindar of Carvatenagaram, L. R. 1 Ind. App. 364. Nor is there anything answering to it in Roman law. It therefore seems to require modification in some such way as here proposed. This will of course not affect liability for nuisance. In a case short of that, the requirement of exact diligence is, one would think, enough.
[(p) ]As to poison, fire, explosives, and dangerous animals, cf. the Penal Code, ss. 284, 285, 286, 289.
[(q) ]See Vaughan v. Taff Vale R. Co., 5 H. & N. 679; Fremantle v. L. & N. W. R. Co., 10 C. B. N. S. 89. Such a case as Jones v. Festiniog R. Co., L. R. 3 Q. B. 733, where the use of locomotive engines not being especially authorized, it was held that the company used them at its peril, could, I suppose, hardly occur in British India. If it did, and if the clause now submitted had become law, the decision would be the other way, unless Act IV. of 1879, s. 4, implies that using locomotives without the sanction of the Governor General in Council is absolutely unlawful. As to the use of fire for agricultural purposes, such as burning weeds, see Turbervil v. Stamp, 1 Salk. 13, and 1 Ld. Raym.; and D. 9. 2, ad 1. Aquil. 30, § 3.
[(r) ]Madras R. Co. v. Zamíndár of Carvatenagaram, L. R. 1 Ind. App. 364.
[(s) ]Lyell v. Ganga Dai, I. L. R. 1 All. 60; cp. Farrant v. Barnes, 11 C. B. N. S. 553. It is for the plaintiff to prove want of notice; see Williams v. East India Co., 3 East at p. 199, where a somewhat artificial reason is given. It seems enough to say that the want of notice is an essential part of the plaintiff’s case; the duty is, not to abstain from sending dangerous goods, but to give sufficient warning if you do. As to the non-liability of a person innocently dealing with dangerous things of whose true character he has not notice, see The Nitro-Glycerine Case, Sup. Ct. U. S., 15 Wall. 525.
[(t) ]Dixon v. Bell, 5 M. & S. 198, and Bigelow L. C. 568, which goes even further.
[(u) ]Thomas v. Winchester, 6 N. Y. 397, Bigelow L. C. 602. See this case discussed p. 456, above.
[(x) ]See Foulkes v. Metrop. Dist. R. Co., 5 C. P. D. 157, especially the judgment of Thesiger L. J. The words now inserted are suggested by Elliott v. Hall, 15 Q. B. D. 315.
[(y) ]Most of the previous authorities are collected and discussed in Indermaur v. Dames, L. R. 1 C. P. 274 (in Ex. Ch. 2 C. P. 311).
[(z) ]English common law authorities incline to the view that a servant injured by the defective state of the place where he is employed can hold the master liable only for personal negligence. I am not sure that even the Employers’ Liability Act puts him on the same footing as a customer, but I think he ought to be so.
[(a) ]Chapman v. Rothwell, E. B. & E. 168, 27 L. J. Q. B. 315 (treated by the Court as a very plain case).
[(b) ]Barnes v. Ward, 9 C. B. 392, 19 L. J. C. P. 195.
[(c) ]Corby v. Hill, 4 C. B. N. S. 556, 27 L. J. C. P. 318.
[(d) ]Smith v. London & St. Katharine Docks Co., L. R. 3 C. P. 326. Cf. Francis v. Cockrell, L. R. 5 Q. B. 501 (Ex. Ch.), where, however, the duty was also put on the ground of contract; Heaven v. Pender, 11 Q. B. Div. 503.
[(e) ]Kearney v. L. B. & S. C. R. Co., Ex. Ch. L. R. 6 Q. B. 759; cp. Byrne v. Boadle, 2 H. & C. 722, 33 L. J. Ex. 13, and in Bigelow L. C., where it is said that “it is the duty of persons who keep barrels in a warehouse to take care that they do not roll out,” and there was no positive evidence that the barrel was being handled by servants of the defendant, or being handled carelessly.
[(f) ]Tarry v. Ashton, 1 Q. B. D. 314.
[(g) ]It is rather difficult to say in what respect, if any, a “bare licensee” is better off than a trespasser, except that he might, once knowing the occupier to allow his presence, be entitled to regard as “invitation” this or that indication which could not be presumed to be meant for trespassers. And the position of a visitor or guest (in the ordinary sense, not a paying guest at an inn) is not quite clear. It does not seem needful, however, to enter on these questions. The case usually cited for the relation of a host and (gratuitous) guest is Southcote v. Stanley, 1 H. & N. 247, 25 L. J. Ex. 339, which, however, is not altogether satisfactory. The line of reasoning seems to be that a guest voluntarily puts himself in the same plight as a member of the family, and as such must take things as he finds them. It is also attempted to bring this under the same principle as the doctrine of “common employment,” then in great favour with the Court of Exchequer. [See p. 471 above.]
[(h) ]Hounsell v. Smyth, 7 C. B. N. S. 731, 29 L. J. C. P. 203.
[(i) ]Bolch v. Smith, 7 H. & N. 736, 31 L. J. Ex. 201, a rather strong case, but for that very reason a good illustration.
[(k) ]Moffatt v. Bateman, L. R. 3 P. C. 115.
[(l) ]These clauses on damages are a mere sketch: but it may be a question whether anything more elaborate is desirable.
[(m) ]Whitman v. Kershaw, 16 Q. B. Div. 613.
[(n) ]Emblen v. Myers, 6 H. & N. 54, 30 L. J. Ex. 71.
[(l) ]Some such rule as this is indicated by English decisions and dicta, though I do not think it is anywhere laid down in a complete form; Clayards v. Dethick, 12 Q. B. 439; Gee v. Metrop. R. Co., L. R. 8 Q. B. 161; Robson v. N. E. R. Co., L. R. 10 Q. B. at p. 274; Lax v. Mayor of Darlington, 5 Ex. D. 28; cf. Horace Smith, 156, 157.