' f UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY PRINCIPLES OF THE LAW OF CONSENT WITH SPECIAL REFERENCE TO CRIMINAL LA.W, INCLUDING THE DOCTRINES OF JWistake, Duress, and Waiver, BY IIUKM CT-TAND, M.A,, AUTHOR OF " RES JDDICATA." PRINTED AND PUBLISHED BY THJ3 BOMBAY EDUCATION SOCIETY'S PRESS. 1897. [All rif/Jtts reserved.] T (L T JAH; J|AWAB ^AHBUB ^LI j^H/JX JS/HADUR, FUTTEH JUNG, G.C.jS.T., OF THIS FIRST RESULT OF A pRACIOUS ^ATF^ONAGE, BY ]-(i J^IQH^E^' ^OVER^NMENT FOR^ THE OF LEQAL xs, PERMISSION, tietitcatetr AUTHOR. PREFACE. THE favour with which my work on tl Res Judicata" has been received, not only in India, but in England and the United States, may betaken as a conclusive proof of the general appro- val of the plan adopted in its preparation the plan of the utilization of the labours of foreign judges and jurists for the development of the Indian law, and of a recourse to judicial decisions and legal writings of other countries for the elucida- tion of legal questions coming before the Indian courts. The references in that work to the decisions of American courts and to the works of American authors, are attracting the attention of Indian judges and Indian lawyers to the vast sources of hidden judicial wealth, which can be so well and so easily utilized to help them in the administration of justice in this country, and to guide them in the proper solution of the legal-difficulties they every day encounter in their work. In England, the inclusion of Mr. Browne's notes in Campbell's series of Ruling Cases, and the increasing references to American decisions in all legal publications, is a tangible evidence of an increasing demand for such knowledge, and must result in a still further increase in that demand. The foundation there of the Society of Comparative Legislation with a view to disseminate a more extended knowledge of foreign law is also a step, and ail important step, in the same direction. The work of the Society cannot fail to direct general attention to the study of the American and Continental systems of Jurisprudence, and to provide facilities for that study by giving a special stimulus to the creation of a foreign legal literature in the English language. The importance of this result can hardly be over- estimated, as it will not only prevent the adoption by the legis- lature of measures already tried and found to be a failure in other countries ; but it is certain also to increase the vision and J v PKEFAGE. broaden the horizon of the English legal public, and by fa- miliarizing it with judicial conceptions and legal methods other than its own, to prepare the way for legislation on a wider and more catholic basis. This is also likely in the end to contribute materially to the general assimilation of the commercial and general laws of different jurisdictions under the British Empire, and even of other countries, and to a relaxation of that antiquat- ed rule which treats the law of even an adjoining country as a question of fact, to be proved like other facts, by the evi- dence of experts. In these circumstances, an explanation can hardly be required of me for the cosmopolitan char- acter of this work, in which the writings of Kessler, Breithaupt, and Binding ; of Carrara, Crivellari, and Giorgi ; and of Garraud, Blanche, and Adolphe and Helie are cited as freely as those of FitzJames Stephen, Russell, and Pollock ; of Hume, Alison, and Macdonald ; and of Wharton, Bishop, and Clark : and the Codes, legislative projects and decisions of Germany, Italy, and France are referred to as frequently as those of India, the British Islands, and North America. 2. The principle of res judicata and other cognate doctrines having been treated in iny last work with special reference to their application in civil proceedings, I decided to treat next of some subject with special reference to its application in criminal law. The Irish decision in Reg. v. Hehtr called my attention last year to the apparently hopeless conflict of opinion in regard to the subject of consent, as disclosed in the leading articles on that subject in the Hanvard Law Review and Madras Law Journal, as well as in the leading decisions of Reg. v. Middleton, Reg* v. Ashwell, Reg. v. Flowers, and Reg. v. Clarence in England ; of Reg. v. Dee in Ireland ; and of Wolf stein v. People, and Dutclier v. State in, the United States. I was aware that the conflict was not restricted to the questions touched by those decisions, or even to the countries whose jurisprudence was derived from or based on the English law. I soon came to know that in regard to PREFACE. y criminal matters, it extended as well to the leading countries of Em-ope, where jurists are still discussing the general effect of consent on crimes, and the inalienability of individual rights, of rights to one's life and limb, and even to one's person or property. Among the most successful accomplishments of the Indian Penal Code, is the treatment of the essential qualifications and fche positive operation of consent of consent as a legal phenomenon in the law of crimes, and as a ground for justifica- tion of criminal acts. Unlike it, the Penal Code of almost every country in Europe, to a great .extent, ignores consent altogether ; and even the Codes which recognize it, do so only in a very few cases and only as a ground of the mitigation of punishment. The question even of the necessity of the absence of consent for any offence, is usually left to be determined by general consi- derations relating to the nature of that offence, and of the general principles bearing on consent. It occurred to me that some of this conflict was due to a misapprehension of the nature of consent and its usual incidents, and might be avoided or lessened by a proper consideration of the subject in all its bearings ; light being thus thrown on points not sufficiently developed or clear in one branch or system of law by what has been written or said about them in other branches or systems. The results of this consideration are embodied in this treatise, for which I now claim the indulgence of the public. 3. The subject is at once important and comprehensive. Consent may be said to be the essence of the obligation of all contracts, the destruction of the liability involved in all torts, and a justification or mitigation of the criminality of most crimes. If acts and intention are the base of a legal trans- action, consent is one of its chief modifying factors, giving it its particular coloring and tone. Consent can make a wrong right; and there is hardly a transaction which may not undergo some change in its legal character on account of its wide extending operation. The effectsof this operation in the case of most trans- actions are of too uniform a character to require separate treat- yj PREF/.CE. merit. This treatise, therefore, aims chiefly at discussing the general principles relating to consent, the illustrations in sup- port of the leading propositions advanced being drawn from the most usual and common classes of transactions. As compared with the branches of law affecting merely private rights and duties, the effect of consent is, no doubt, rather limited in cri- minal law ; but even in that law, it affects the criminality of almost every act to a greater or less extent, find most of the private crimes can exist only in the absence of consent. The effect of consent is, in some cases, direct and in others indirect, and sometimes as preventive or destructive of criminality, and sometimes merely as a mitigation of the offence or of its punish- ment. On that very account, however, most of the difficulties connected with the subject arise in criminal law, a consideration which has chiefly influenced me in its selection for treatment with special reference to the law of crimes. For a proper eluci- dation of the questions arising in connection with that law, full advantage has, however, been taken of the analogies of the civil law relating to consent, and of the operation and effect of consent in the law of contracts and torts. There is an increas- ing tendency, at present, to look at different branches of law as separate from each other ; but law is an organic whole, and so clearly are its component parts dependent on and connected with each other, that individual notions and principles of anv one branch are, isolated and by themselves, as little capable of being understood properly as any separate piece of a homo- geneous and complete mechanism. This is particularly necessary in regard to the law of consent, both as that law in its bearing on crimes is, even in British India, where it is most advanced, in a very undeveloped condition ; and as the questions arising in cases of offences against property directly involve principles of the transfer of property and possession, and thus turn on the civil law of obligations and things. 4. The general plan of this work is much the same as that adopted in the treatise on Ees Judicata. Unlike Res Judicata, TEEFACE. - v -j however, there is no statutory law on the subject of consent even in British India, except in regard to the causes of its dis- qualification, and to its effects as a justification ; and it has naturally not been practicable to follow the order of any positive law. The treatment has, therefore, proceeded on natural lines, and in the orderly sequence in which the various questions connected with the subject arose for consideration. The entire subject has been divided into thirteen chapters. The first chapter, after referring briefly to the operation of consent in the law of contracts and torts, explains the general character of its operation in criminal law. The second chapter treats of the nature of consent as an operation of mind, and in relation to the fact of knowledge. The third chapter discusses at length the nature of coercion, mistake, and other objective and subjective disqualifications and vitiating causes of consent in the law of contracts, and the effect of those disqualifications and causes on the existence of consent, which in every branch of law is, however, independent of them. The fourth chapter treats of the expression of consent as express, and implied or constructive, and of the various cases in which it may or may not be implied from acts or circumstances which do not convey it directly. The fifth chapter explains the scope of consent and of the act consented to, discussing the difference between consent and- will. The effect of consent forms the subject of the sixth chapter, in which the subjective and objective incidents of an effective consent are discussed. The seventh and eighth chapters, which read together, form, as it were, an extended commentary on S. 90 of the Indian Penal Code, treat respectively of the objective and subjective causes that vitiate consent in criminal law ; the former, discussing the exact effect on consent of fear, misconception, and fraud ; and the latter, the grounds of incapacity for consent, including infancy, unsoundness of mind, and drunkenness. The ninth chapter deals with the absence of consent, and with the offences of which that absence is an essential constituent, and which cannot coexist with consent. PREFACE. The tenth chapter is a sort of extended commentary on S.S. 87-89, 91 and 92 of the Indian Penal Code, and deals with consent as a justification of acts which otherwise would fall within the criminal law. The next succeeding chapter deals with consent as a ground of mitigation of the criminality of acts or of their penalties. The twelfth chapter deals with the eifect of consent on jurisdiction and rights ofprocedure, and the extent to which they may be waived. And the work concludes with the thirteenth chapter, in which mention is made of a few points relating to the onus probatidi and evidence of consent. 5. Reference has already been made to the scantiness of the statutory law on the subject. Nor is the case-law bearing on the subject very heavy. Full advantage has, however, been taken of both these sources of information so far as they go, as well as of the unofficial literature on the subject. I am not aware of any English work dealing exclusively with the subject, which is dismissed even by writers like Dr. Whar- ton and Dr. Bishop in a few pages of their respective works on criminal law. On the continent of Europe, t have been able to get only two small treatises in Germany by Kessler and Breith- aupt respectively, and though they are both essentially contro- versial, discussing only particular aspects of the subject, my best acknowledgments are due to them. The subject is referred to, however, at some length in almost every general work on crimi- nal law, and assistance has been taken from almost all such works, as well as from the leading commentaries on most of the Penal Codes of India, Europe and America ; the learned com- mentaries of Olshausen, Rudorff and Rubo on the German Penal Code having, for instance, remained on my table, during the preparation of the work, even more constantly than the works of Mayne, Starling and Collett on the Indian Penal Code. The assistance taken by me has generally been acknowledged expressly and by name in the body of the work ; but special reference may here be made also to the debates in the various Legislative assemblies which have enacted Criminal Codes, to PREFACE, [ K the reports of the English and the Indian Law Commissioners engaged at different times in the revision of the criminal law of England and India, and to the excellent report with which Livingston presented his Draft Criminal Code for Louisiana. 6. In treating of the subject, I have not contented myself with an enunciation of a bare statement of the law applicable, nor even with merely formulating hard and fast rules. The subject being, to a great extent, still in a controversial stage, it has been my constant endeavour to cite authorities for every leading proposition advanced, and to illustrate the same by quotations from decisions and text-books, using, so far as practicable, the ipsissima verba of the judges and the jurists. This has appeared to be specially desirable, as the foreign reports and publications from which assistance has been taken are almost entirely inaccessible in this country. 7. One of the main objects of the work being the expla- nation of the present law of India relating to the subject of consent, it has been an object of constant endeavour to in- troduce references only to such aspects of foreign laws and decisions as are of a general character and may be of use in this country. And when for the sake of argument or for the eluci- dation of any point, the mention of other facts has been found unavoidable, their real character has been invariably so clearly indicated as to avoid all chance of 'confusion to the Indian lawyer. Further, as the majority of the Indian readers cannot generally be acquainted with the modern continental languages, I have, in case of citations from the German and the Italian, and in most cases even from the French authors, given an English translation in the notes. In regard to the decisions cited, the authoritative report alone has generally been given in the body of the work ; but reference has been made in the nominal index to other contemporaneous reports, and to the well-known series of the Revised Reports in England, and to the National Reporter Series, the Law x PREFACE. Reports Annotated Series, and the series which the public owe to Mr. Freeman and his associates in the United States. In most cases, the year in which the decisions were passed has also been given in that index. To further increase the usefulness of the work, a list of contents has been added, and the index of subjects made full by means of cross-references, and a proper classification of subheads. HUKM CHAND. Delhi) 20M June 1807. TABLE OF CONTENTS. CHAPTER!. OPERATION OF CONSENT IN CRIMINAL LAW. PAGE 1. General operation of consent ..,. ... ... ... 1 2. Operation of consent on contracts ... ... ... ... 1 8. Operation of consent on torts ... ... ,.. ... 3 4. Injury to person if consented to cannot be tort ... ... 6 5. Consent of au individual does not affect acts prejudicial to public 6. Operation of consent in Criminal law .., ... ... 9 7. The exact character of this operation of consent ... ... 10 8. Absence of consent, the essence of most private crimes ... 12 9. Absence of consent expressly made essential for some offences in the Indian Penal Code ... ... ... 14 10. Consent is an excuse for several criminal acts 14 CHAPTER II. NATURE OF CONSENT. 11. Consent is an operation of mind ... ... ... ... 16 12. Nature of physical consent ... ... ... .... .,.. ]7 13. Consent not to be confused with estoppel ... ... ... 18 14. No consent to an act without knowledge thereof ... ... 19 15. Knowledge of attributes of an act how far necessary to consent ... ... ... ... ... ... ... 20 16. Consent in law of contracts ... ... ... ... 21 17. Consent in non-contract law ... ... ... ... 22 18. A person while asleep cannot give consent ... ... 23 1 9. No consent if want of knowledge due to unconsciousness on other account ... ... ... ... ... ... 25 20. Consent to an act does not involve knowledge of its non- essential incidents ... ... ... ... ... ... 28 21. Knowledge of character of an act not necessary for consent to it... ... ... ... ... ... ... 30 22. No consent where mind incapable of operation required for consent or of knowledge ... ... ... x TABLE OF CONTENTS. CHAPTER III. CONSENT is INDEPENDENT OF ITS QUALIFICATIONS. PAGE 23. Existence of consent independent of subjective and objective considerations ..'. ... ... ... ... 33 24. In contracts also, consent not free or fair, may be consent. 33 25. Consent required to be free and fair for valid contracts ... 35 26. Coercion as affecting freedom of consent ... ... ... 35 27. General signification of duress in English law ... ... 36 23. Extent of fear required to constitute coercion ... ... 39 29. Withholding possession of goods how far a duress in English law ... ... ... ... ... ... 41 30. Duress of goods in the United States ... ... ... 43 31. Illegality of act done or threatened how far necessary to constitute duress ... ... ... ... ... ... 48 32. In the United States, lawful imprisonment, if malicious, may constitute duress ... ... ... ... .,, 50 33. Illegality of act done or threatened how far necessary to constitute duress in Indian law ... ... ... ... 54 34. Undue influence as affecting freedom of consent ... ... 55 85. General notion of fraud as affecting freedom of consent ... 57 36. Fraud in English law 59 37. Fraud in Indian law ... ... ... ... ... 60 38. Absence of free and fair consent makes contracts only voidable ... ... ... ... ... ... ... 61 39. General effect of mistake on consent ... ... ... 65 40. Mistake, error, and ignorance how far different ... ... 66 41. Mistake even of one party may prevent formation of contract ... ... ... ... ... ... ... 68 42. Nature of facts, mistake of which may affect consent ... 69 43. Mistake as to the nature of the transaction ... ... ... 72 44. Mistake as to the parties to a contract ... ... ... 75 45. Mistake as to the identity of the object of contract ... 77 46. Mistake as to the existence of the object of contract ... 78 47. Mistake as to the substance of the object of contract ... 80 48. Mistake as to substance in English law ... ... ... 82 49. Mistake as to the quantity of object of contract ... ... 87 50. Mistake as to the motives for the contract ... ... ... 87 51. Effect on consent of mistake of law ... ... ... ... 90 52. Mistake of law distinguished from mistake of fact ... 93 53. Mistake as to the existence of a title or right ... ... 96 54. Action of Courts of Equity in regard to mistake of law ... 98 55. Mistake as to legal effect or construction of contracts ... 101 56. Mistake of a well-settled principle of law not entitled to special relief... ... ... ... ... ... ... ]03 57. Effect of mistake of law in European countries ... ... 306 58. Effect of mistake on transfer of ownership ... ... ... 108 59. Transfer of ownership in case of non-specific chattels ...* 109 TABLE OF CONTENTS. x [ PAGE GO. Transfer of ownership in case 6f specific articles ... ... 110 61. Recovery of a thing given under mistake ... ... ... 113 62. Effect of mistake on transfer of rightful possession ... ]23 63. Rightful possession distinct from possession ... ... 124 64. Possession may be transferred by mere physical delivery... 126 65. Mistake has no effect on transfer of mere possession ... 128 C6, Subjective incapacity to contract ... ... ... ... 132 67. Consent distinguished from free consent in law of torts ... 137 68. Consent distinguished from free consent in Criminal law... 138 69. Consent distinguished from free and intelligent consent in the Indian Penal Code 141 CHAPTER IV. EXPRESSION OP CONSENT. 70. Necessity of the expression .. ... ... 143 71. The expression though in agreement, is not identical with consent ... ... ... ... ... .;. ... 143 72. Consent may be implied ... ... ... ... ... 145 73. Consent may be implied in contracts ... ... ... 148 74. Consent may be implied in non-contract law ... ... 149 75. Consent may be implied in Criminal law ... ... ... 149 76. Implied consent distinguished from constructive consent ... 150 77. Consent implied from non-resistance ... ... ... 152 7$. Obligation to have an act done does not involve consent to the doing of that act ... ... ... ... ... 159 79. Consent to an act implies consent to its natural and contem- plated consequences ... ... ... ... ... 161 80. Recognition of the implied consent to consequences in law of contracts ... ... ... ... ... ... ... 163 81. Recognition of the implied consent to consequences in law of torts 82. Doctrine of obvious risks in England ... ... 83. Doctrine of obvious risks in the United States 84. Exact character of the voluntariness of the assumption of risks 172 85. Consent to an act implies consent to everything necessary to do that act 176 86. Consent not implied from non-prevention ... ... ... 176 87. Consent to an act not implied by pruviding facilities for it to catch the doer ... ... ... ... ... .., 179 88. Creating opportunity for an act does not imply consent to it ' 183 89. Encouraging or co-operating in an act to discover the doer, does not imply consent to it ... ... ... ... 185 90. Inducing a person to an act implies consent to the act it . 185 x i{ TABLE OF CONTENTS. PAGE 91. Soliciting a person to do an act implies consent to ifc ... 1S7 92. No question of consent where criminal act is done by injured person ... ... ... ... ... ... ... 188 CHAPTER V. * THE SCOPE OF CONSENT. D3. Consent is merely to an act ... ... 192 94. Consent can be only to another's act ... ... ... 11*2 95. Distinction between consent and will ... ... ... 192 96. General recognition of the distinction between consent and will ... ... ... ... ... ... ... 195 97. Consent to one act is not consent to another act ... 197 98. Identity of act how far affected by difference of subjec- tive and objective incidents ... ... ... ... 200 99. Separate acts how far deemed one and the" same ... 202 100. Consent to taking of one article is not consent to taking of another article ... ... ... ... ... 206 101. Consent may be conditioned or limited in any manner... 209 102. Consent to an act is to the act as usually done... ... 210 103. Consent to an act is not consent to the consequences of that act 211 CHAPTER VI. EFFECT OF CONSENT. 104. Consent can be only to a future act ... ... ... 213 105. Consent distinguished from subsequent approval ... 216 106. Consent must exist at the time of the act ... ... 219 107. Consent must be of person to whom harm is caused ... 222 108. Effect of consent not affected by motive of its giving ... 228 109. Consent must have come to the knowledge of the doer of the act 231 110. Mcie belief as to absence of consent not equivalent to its absence ... ... ... ... ... ... 233 111- Belief of absence of consent how far deemed equivalent to consent in India 235 TABLE OF CONTENTS. CHAPTER VII. OBJECTIVE DISQUALIFICATIONS OF co]S 7 SENT. PAGE 112. Consent caused by fear or misconception of fact is not consent in criminal law ... ... ... ... ... 237 1 1 3. General recognition of the principle in the Indian Penal Code 237 1 1 4. Knowledge by person acting on consent of its having been given by fear or misconception ... ... ... 239 115. Recognition of the provision in English Criminal Law. 241 116. Coercion and fraud will not necessarily avoid consent... 242 117. Fear may bo caused by duress ... ... ... ... 212 118. Fear may be result of one's dependent position... ... 245 119. Character of the injury causing fear ... ... ... 246 1 20. Fear must be of some harm other than that contem- plated from the act consented to ... ... ... 247 121. Scope of misconception of fact in Indian Criminal Law. 248 122. Effect of mistake on consent in English Criminal Law... 249 123. Effect of mistake on consent in larceny cases ... ... 250 124. Effect of delivery by an agent ... ... ... ... 253 125. Mistake as to^the identity of the person... ... ... 257 126. Mistake as to the thing given ... ... ... ... 258 127. Mistake as to motives confused with mistake as to identity 260 128. How far receiving of a thing given by mistake as to motive is larceny ... ... ... ... ... 262 129. Effect of mistake as to the thing in French law of theft. . . 264 130. No larceny if person receiving shared giver's mistake at time of receipt ... ... ... ... ... ... 267 131. No larceny if person receiving was not aware of giver's mistake at time o receipt ... ... ... ... 273 132. Effect of fraud on consent in law of crimes ... ... 273 133. Fraud negatives offences of which absence of consent is essential constituent ... ... ... ... ... 274 134. Intercourse with a woman by fraud in personating her husband " ... 276 135. Cases against conviction for rape turn on the supposed necessity offeree for that offence ... ... ... 136. Signification of force extended constructively ... Io7. Force did not include mere fraud... 138. Pemtlity of intercourse obtained by fraud 139. Consent obtained by fraud negatives rape chiefly under special legislation ... ... ... ... ... 288 140. Consent obtained by fraud negatives assault ... ... 289 141. Fraud vitiates consent merely as an error ... ... 293 142. Consent obtained by fraud does not affect abduction ... 294 143. How far consent obtained by fraud is consent in theft... 297 144. How far consent to entrance obtained by fraud is con- sent in house-breaking . 300 Xiv TABLE OF CONTENTS. CHAPTER VIII. SUBJECTIVE DISQUALIFICATIONS OF CONSENT. PAGE 145. Consent of incompetent person is not sufficient consent in Criminal law ... ... ... ... ... ... 304 146. Statutory protection of minors in regard to rape in English law ' ... 306 147. Substitution of minority for force in rape ... ... 307 148. Constructive extension of force in cases of minority ... 308 140. Sexual intercourse with minor's consent statutorily punishable even outside England ... ... ... 309 150. Minor's consent to sexual intercourse generally held not to be consent... ... ... ... ... ... 310 151. Consent immaterial in case of attempt to have carnal knowledge of minors ... ... ... ... ... 311 152. Minor's consent, according to common law, avoids the criminality of an indecent assault ... ... ... 312 153. Special legislation to make indecent assault against minors an offence in spite of consent ... ... ... 316 154. Limit of the age of consent ... ... ... ,. 318 155. Common law did not recognize unsoundness of mind as disqualification of consent ... ... ... ... 321 156. Effect of idiocy on consent iu the United States.., ... 324 157. Attempted extension by analogy of rules concerning minors to persons of unsound mind ... ... ... 325 158. Statutory legislation for protection of the insane ... 327 159. Intoxication as a vitiating cause of consent ... ... 329 160. Causing intoxication iu order to get consent is equivalent to force in English law ... ... ... ... ... 330 161. Effect on consent of causing intoxication on tho Continent... ... ... >.. ... ... ... 331 162. Sexual intercourse with a female by drugging her is not rape, though sometimes deemed punishable as such. 33 i 163. Criminal act done to a person after intoxicating him is not excused by that person's consent ... ... ... 836 16 i. Consent by an intoxicated person does not excuse crimi- nality of act done with knowledge of his intoxicated condition ... ... ... ... ... ... ... 337 165. Recognition of vitiating effect of intoxication in Indian Penal Code 338 166. Effect of spiritual force on consent ... ... ..,, 339 CHAPTER IX. OFFENCES INVOLVING ABSENCE OF CONSENT AS AN ESSENTIAL CONSTITUENT. 167. Negative operation of consent in criminal law ... ... 340 168. Determination of offences for which absence of consent is essential ... ... ... ... 341 TABLE OF CONTENTS. xv PAGE 169. Moral character of an oSence no criterion of the neces- sity of absence of consent ... ... ... ... 343 170. Necessity of absence, consent for an offence may be determined by the object of the law applicable ... 344 171. Consent in theft 344 172. Consent in other offences relating to property ... ... 347 173. Consent in rape ... ... ... ... ... ... 349 174. Consent in assault... ... ... ... ... ... 352 175. Consent in assault in disturbance of public peace ... 353 176. Consent in cases of aggravated assault ... ... ... 355 177. Consent in wrongful confinement ... ... ... 356 178. Consent in offences relating to compulsory labour ... 358 179. Consent in other offences affecting personal freedom ... 360 180. Consent in abduction ... ... ... ... ... 361 181. Consent in adultery ... ... ... ... ... 363 182. Mere consent does not avoid criminality of an act which must be done with particular evidence of it ... ... 368 CHAPTER X. CONSENT AS JUSTIFICATION. 183. Consent as a ground of exemption from criminal liability 369 184. Principle of the exemption from liability ... ... 371 1 85. Restriction of the rule as to non-liability on the ground of consent... ... .... ... ... ... ... 372 186. Restriction of the exemption from liability in regard to the age 372 187. Restriction of the exemption from liability in regard to the nature of the harm, caused ... ... ... ... S73 188. Harm to one's life among ancients ... ... ... 375 189. Influence of Church and State on harm to one's life ... 376 190. Immunity of suicide from punishment ... ... ... 377 191. Suicide not an offence as it does not contemplate injury to any rights ... ... ... ... ... ... 378 192. Suicide not punishable as indicative of unsoundness of mind at the time of its commission ... ... ... 379 193. Inadvisability of punishing suicide ... ... ... 380 191. Suicide in English law 383 195. Penality of attempt of suicide ... ... ... ... 383 196. Penality of abetment of suicide .. ... ... ... 385 197. Abetment of suicide in English law ... ... ... 387 198. Attempt and abetment of suicide punishable in India ... 388 199. Confusion of abetment of suicide with homicide of con- senting person ... ... ... ... 389 200. Abetment of suicide is really distinct from homicide by consent ... 391 xv i '- TABLE OF CONTENTS. PAGK 201. Homicide by consent is real homicide ... ... ... 393 202. Objections to the treatment of homicide by consent as murder ... ... ... ... ... ... ... 395 203. General concensus as to penality of homicide by consent 400 204. How far homicide in a duel is murder ... ... ... 402 205. Homicide by consent punishable in India ... ... 405 206. Effect of consent on acts merely known to be likely to cause one's death... .. ... ... ... ... 406 207. Knowledge of likelihood of an effect distinguished from intention to cause that effect ... .. ... ... 407 208. Penality of causing hurt to oneself ... ... ... 408 209. Voluntary causing of hurt to another as affected by his consent ... ... ... ... . ... ... 409 210. In Indian Criminal Law, consent justifies every hurt other than grievous ... ... ... ... ... 415 211. Even grievous hurt justified in certain cases by consent. 416 212. Taking risk of harm contrasted with, consent to suffer harm ... ... ... ... ... ... ... 417 213. Manly exercises with arms how far allowed ... ... 42] 214. Greater effect of consent on acts done for benefit of person consenting ... ... ... ... ... 422 215. Such acts to be justified must be done in good faith ... 423 216. Extent of justification by consent in case of acts for benefit of person consenting ... ... ... ... 424 217. Acts for a person's benefit not justified if not consented to by him... ... ... ... ... ... ... 425 218. Guardian's consent generally deemed equivalent to one's own consent ... ... ... 426 219. Guardian's power of consent is not co-extensive with one's own... ... ... ... ... ... ... 427 220. Restrictions on. guardian's power of consent ... ... 427 221. What acts causing harm justified when done without consent ... ... ... ... ... ... ... 428 222. Restrictions on the power of causing harm without consent ... ... ... ... ... ... ... 430 223. Consent does not justify acts constituting public offences ... ... ... ... ... ... ... 431 224. Consent does not justify acts constituting other offen- ces, irrespective of harm caused by them to person consenting ... ... ... ... ... ... 432 CHAPTER XL CONSENT AS A GROUND OF MITIGATION. 225. Consent a ground for mitigation of liability ... ... 434 226. Consent is ground of mitigation in case of homicide ... 435 227. Consent is a mitigation of olleuce of homicide in India.. 438 TABLE OF CONTENTS. PAGE 228. Limitation of the age of consent for homicide in India... 440 229. Proposed English legislation in regard to homicide by consent ... ... ... ... ... ... ... 441 230. Burning the suttee is only culpable homicide ... ... 44J 231. Homicide in a duel is culpable homicide in India... 444 232. Unsatisfactory effects of treating homicide in a duel as murder 233. Attempts in English law against the treat inent of homi- cide in a duel as murder 234. Greneral concensus against treating homi cide in a duel as murder... 235. Homicide in a' premeditated fight between armed factions is murder ... ... ... ... ... 236. Consent is a ground for mitigation o punishment in case of bodily injuries ... ... ... ...... 457 237. Absence of consent is aggravation ... ... ... 458 238. Even approval, not amounting to consent, causes a mitigation of punishment ... ... ... ... 459 CHAPTER XII. 239. Consent cannot give jurisdiction... ... ... ... 460 240. Consent cannot give jurisdiction over subject-matter ... 462 241. Consent cannot give jurisdiction over appeals ... ... 463 242. Objection to jurisdiction may be taken at any stage of proceedings ... ... ... ... ... ... 464 243. Estoppel from plea of jurisdiction ... ... ... 466 244. Waiver of defect of other jurisdiction ... ... ... 470 245. Waiver of defect of local jurisdiction ... ... ... 473 246. Waiver of defect of jurisdiction over person ... ... 476 247. Waiver of personal exemption from jurisdiction ... 476 248. Disqualification of a judge at common law may be waived --- ... .. ... ... ... ... 477 249. Statutory disqualification of a judge may not be waived. 479 250. Waiver of defect of personal jurisdiction by appearance. 48 : J 251. Pleading after objection to jurisdiction not a waiver of its absence ... ... ... ... ... ... 486 252. Waiver of irregularities in initiating proceedings ... 489 253. Waiver of the irregularity of the first institution of proceedings in a Court not having jurisdiction ... 491 254. Waiver of irregularity of initiative process in criminal proceedings ,.. ... ... ... ... ... 494 255. Waiver of conditions of exercise of civil jurisdiction ... 498 256. Waiver of conditions of exercise of criminal jurisdiction. 504 257. Waiver of rights in matters of procedure ... ... 508 258. Right of waiver unlimited in civil proceedings ... ... 510 259. Essentially different character of criminal proceedings in regard to rights of waiver .,, ... 513 TABLE OF CONTENTS. PAGE 260. Ei glits may be waived to a certain extent in criminal proceedings ... ... ... ,.* ... ... 514 261. Waiver of accused's right of not being asked to crimi- nate himself ... ... ... ... ... ... 517 262. Waiver of ordinary forms of procedure ... ... ... 520 263. Accused may bind himself by agreement in criminal proceedings ... ... ... ... ... ... 524 264. Waiver not allowed where it is prejudicial to accused ... 527 265. Waiver of incompetency of evidence ... ... ... 528 266. Waiver of right of trial by jury ... ... ... ... 530 267. Waiver of the number of jurymen ... ... ... 531 268. Waiver of formal rules for empanelling jury ... ... 53 Am. St. Rep., 87 156, 24/>, 247, 349 Bai Icy r. Joy, (1882) ! 32 Mass., 356 510 Bailey r. State, (1855) 4 Ohio, 57 530 la TABLE OF CASES, PAGE Bairdr. Mayor, (1884)96 N. Y.. 567 64 Baker r. Braman, (1843) 6 Hill, 47 ; 40 Am. Dec., 387 508 Baker v. Morton, (1870) 12 Wall., 150 47,51 Baldwin -a. Bricker, (1882) 86 Ind., 221 74 Baldwin v. Calkins, (1633) 10 Weud., 1S7 4b3 Baltimore K. R. Co. v. Koontz, (188)) 14 Otto, 5 488 Baltimore & O. R. Co. r. Strieker, (1878) 51 Md., 47 ; 34 Am. Rep., 291 Hi 9 Banda Alt . Banspat Singh, I. L, R., IV All., 352 54 Bane v. Detrick, (1869) 52 111., 119 51 Bangor, State v., (1856) 41 Me., 553 ... 509 Bank of Chillicothe v. Dodge, 8 Barb., 233 91,119 Bank of United States v. Daniel, (1828) 12 Pet., 32 02 Banks, Keg. v., (1838) b C. & P., 574 312 Bannen, Reg. t'., (1844) 1 Car. & K., 295 ; 2 Moody C. C., 309 185 Bapuji Aubitramr. Umedbhai, (1870) VIII B. H. C. R. A. C., 245 ... ... 4U5 Barholt v. Wright, (1887; 45 Ohio, 177 ; 4 Am. St. Rep., 635 5, 457 Barker r. Dixie, Cases Temp. Hard., 264 529 Barker, Reg. t>., (1828) 3 0. & P., 589 551 Barnetta. State, (1888) 83 Ala., 40; 3 South. Pep., 612 5:.0 Barratt, Beg. r., (1873) 12 Cox C. C., 498 ; L. R. 2 C. C. Res., 39 322, 337 Barrett r. State, (1880) 9 Tex. Ct. App., 33 520 Barrington v. Vennabies, Raym., 34 ... ... ... ... ... ... ... 483 Barrow, Reg. v., (1868) 11 Cox C. C., 191 24,277 Barton v. Forsyth, (1857) 20 How., 532 480,520 Barton, People v., (1853) 1 Wheel. Cr. Cas., 378 2e3 Baesett r. Spofford, (1871) 45 N. y., 387 ; 6 Am. Rep., 101 299 Bassiok Mining Co. v. Schoolfield, (1858) 10 Cal., 46 489 Batohelder v. Currier, (1864) 45 N. H., 460 480 Batson r. Donovan, 4 B. & A., 21 270 Beale, Reg. v., (1865) 10 Cox C. C., 157 3J3 Bayley r, Williams, 4 GifP,, 638 53 Beauohamp r. Winn, (1873) 6 ng. & Ir. App., 223 10J, 103 Beak, State v., (1833) 1 Hill., 3G3; 2G Am. Dec., 190 229 Bedell v. Bailey, (1876) 58 N. H., 62 479 Beer Chunder Manikkya v. Nobodeep Chunder, (1883) I. L. R., IX Cal., 5?5 ... 477 Beer Chunder Boy u. Tumeezooddeen, (1809) Xil W. R,, 87 511 Beith v. Beith,(1839) 76 Iowa, 60L ; 41 N. W. Rep., 371 5(5 Bell r. Hansley, (1855) 3 Jones N. C., 131 5.20 Bell r. State, (1870) 44 Ala., 393 524,535 Ben v. State, (1853) 22 Ala., 9; 58 Am. Dec., 234 205 Benham, State ., (1829) 7 Conn., 414 205 Bennett, Reg. v., (1366) 4 F. & F., 1105 1W, 289. 290, 291 Benson v. Markoe, (1887) 37 Minn., 30; 33 N. W. Rep., 38 97 Benson, People r., (1850) 6 Cal., 221 } 65 Am. Dec., 506 549, 551 Benstine, State v., (1879) 2 Lea, 169; 31 Am. Rep., 593 552 Beyer r. People, (1881) 8s. Seu., J26 . ... ., 80 Bird w. Jones, (1845) 7 Ad. & El. N. S., 742 357 Bishop r. Kelson, (1876) 83 111., 495 461 Biukemanw. Blakeman, (1872) 39 Conn., 320 97 Blaoklocki;. Small, (1888) 2> Davis, 90 472 Block r. Henderson, (1888) 82 Ga., 23; 11 Am. St. Pep., 138 ; 88, E. Rep., S/7 ... 401 Blood worth P. Soate, (1872)6 Baxt , G14; 32 Am. Rep., 543 ... .. ... 283,286 Hluestone Coal Co. r. Bell, (1893) 18 S. E. Rep., 493. 86 Boddie v. State, (1875) 52 Ala., 393 ... 547 Boggs v. Hargrave, (I860) 16 Cal., 5)9; 76 Am. Dec., o'M 1 '0 Bonas v. Steffens, 62 Hun., 619 4,364 Bond r. State, (185H) 17 Ark., 290 '. ... 530 Borowsky, Stater., (1876) 11 Nev., 119 536 Boston Ice Co. r. Potter, (1877) 123 Mass.. CF; 25 Am. Ror-., * 75 TABLK OP CASES. PAGE Boulter r, Clarke, Bull. N. P., 16 4 Bou'ton v. Jones, (1857) 2 H. fc N., 564 ... ... 75 Bowen.Com. r., (1816) 13 Mass., 338; 7 Am. Deo., 154 388 Bowers r. Thomas, (1885) 62 Wis.. 4S8 ; 22 N. VV. Rep., 710 74 Boyland, State i\, (IbSOj 24 Kan., 186 ... 225 Boylston National Bank r. Richardson, (1869) 101 Mass., 287 llfi Bradley r. Andrews, (1879) 51 Vt., 530 164 Brady r. Richardson, (1862) 18 Ind., 1 . 4VO Brannerr. Chapman, (1873) 11 Kan., 118 48(i Brewing, United States r., (1857) 20 How., 252 520 Bridgewater Iron Co. r. Enterprise Ins. Co., (1883) 134 Mass., 433 85 Briggsr. Boyd. (1874) 56 N. ., 293 45 Briggs ?-. Sizer, (1864) 30 N. Y., 647 148 Brij B*si v. The Queen-Empres*, (1896) I. L. R., XIX All , 74 539, 540 Brisbane r. Dacres, (1813) 5 Taunt., 143 113, 121 Brooks, Stater., (1877) 76 N. C., 1 284 Broughton ?. Hutt, (1858) 3 De. G. and J., 501 80 Brown r. College Corner, (1877) 56 Ind., 110 116 Brown r. Com., (1886) 82 Va., 653 15'.' Brown r. Farian, (1827) 3 Ohio, 153 173 Brown v. People, (1878) 35 Mich., 203; 2 Am. Or. Rep., 203 216 Brown, People r., (187-1) 47 CaL, 450 153 Brownr. State, (1861) 16 Ind., 496 530 Bruce, Eeg. r., (1847) 2 Cox C. C., 262 - 353 Brummitt f. McGuire, (1693) 107 N. 0., 351; 12 S. E. Rep , 191 ll(i Bucklin 7>. Chapin, 53 Barb., 493 508 Budd r Eyerman, 10 Mo. App., 437 115 Buffalo r. O'Malley, (18P4) 61 Tffis., 255; 50 Am. Rep., 137; 20 N. W. Rep., 913 llfj Bunker r. Steward, (1>86) 4 A tl. Rep., (Me.) 558 50 Bnllinerv. People. (1*80) 95 111., 394 509 Bureau ?. Thompson. (166) 39 111., 566 ... 470 Burgdorf, State r , (Ifr73) 53 Mo., 65 153 Burgess, Reg. v, (1862) 9 Cox C. 0., 257 384 Burke, Com.?-., (1870)105 Mass., 376; 7 Am. Kep., 531 26,27,193 Burkhauser r. Schmitt (1878) 45 Wis., 316; 30 Am. Rep., 740 94 Burrow i<. Soammeli, (1881) 19 Ch. D., 182 99 Burtiner. State, (1855)18 Ga., 534 509 Bush v. Brown, (1875) 49 Ind., 573; 19 Am. Rep., 695 .., 63 Bush, Com. v, 105 Mass., 376 24 Eutler, Stater., ('884)97 Ind., 378 S23 Butterick, Com. v., (1868) 100 Mass., 1; 97 Am, Dec., 65 ... 151 Byers r. Chapin, (1876) 28 Ohio, 300 86 C Cameron v. Hodge, (1888) 20 Davis. 322 . .,. ... 472 Campbell, People r., 4 Park. Cv., 38F> ., 526 Camphor >?. State, (1846) 14 Ohio, 437 355 Camplin, Reg. v , (18 i5) 1 Car. & K., 746; 1 Cox C. C , 220 ; 1 Dea. 0. C., 89. ..25,278, 28-1, 330 Cancemiv. People, (1858) 18 N. Y., 128 513,515,532,535 Canedy r. Marcy, (1859) 13 Gray, 373 102 Carpenter v. Shepardsrm, (1877) 43 Wig., 406 ... 484 Cartwright r. Green, (1803) 8 Yes., 405; 1 Den. C.C; 387 ; Leach, 952; 7 R. R., 99. 125, 127, 207, 264 Cartwright v. Rowley, (1799) 2 Esp , 722 43 Case, Reg. v.. (1850) 4 Cox C. C., 220 ; 1 Den. C. C., 580; 13 L. J. (M. C.) 174 ... 27 Gassy, Kel'., 62 ... 301 Castro, Queen ., (1 K 80) 5 Q. B. D., 400 .. 205 Central Bank v. Copland, (1832) 18 Md., 305; 81 Am. Dec., 597 38,47 Chamberlain, Bex v.,(L826) 1 Moody C. C., 154 . ... 540,543 Chambers v. CJearwuter, 1 Abb. App> Dec., 341: I Keyes, 314 ... ... ... 480 Chambers r. Hodges, (1859) 23 Tex., 583 480 Chambers, State v., (1S44) 6 Ala., 855 , 230 4 TABLE OF CASES. Champlin v. Laytin, (1837) IS Wend., '107; 31 Am. Deo,, 382 ...... 67, 1(0 Chandler v. Sanger, (Ib74) 114 Mass., 304 ; 19 Am. Rep., 367 ......... 45 Chaudu Lai r. A wad Biu Umar, (1896) I. L. K.,XXI Bora..' 351 ........ , 498 Chanter r. Hopkins ,(1838) 4 M. & W., 404 .................. 112 Chapman v. Cole, (1858) 12 Gray, 141; 71 Am. Deo., 739 ........... Ill Charles r. State, (1830) 11 Ark., 390 ... .................. 24 Charles Fletcher, Beg. v., (1866) 10 Cox C.C., 248; 14 L. T. (N. S.), 537; 2 L. T. M. C., 85 ......... .................. 195, 322,326,327 Charter, Rex r., 13 Shaw's J. I'., 746 ..................... 26 Chase r. Dwinal, (1830) 7 Grecnl., (Me..) 134; 20 Am. Dec.,52 ......... 45 Cheltenham Commissioners, Queen ?.. (1841) 1 Ad. & El., N. S., 467 ...... 478 Childa.Com. r., 2 Pitts., 391 ... ..................... 275 ChoolieLall v. Kokil Singh, (1873) XIX W. R., 248 ............... 521 Choonmaker v. Clearwater, 41 Barb., SOO .................. 480 Christy . Sullivan, (1875) 50 Cal., 337; 19 Am. Rep., 655 ............ 94 Churchill v. Bauman, (1894) 104 Gal., 369 ............... ... 4 Clarence, Reg. v., (1888) 22 Q. B. D., 23 ; 16 Cos C. C., 611, ..159, 162, IDS, 2U, 273, 289 291,2i)4 Clarke r.Dutcher, 9 Cow., 674 ........................ US Clark v. Turnbull, (1885) 47 N. J. Law.. 265; 54 Am. Rep., 157 ......... 50 Clarke, King r., 2 Stark., 243 ........................ 540 Clarke, Reg. t>., (1854) 6 Cox C. 0., 412 .................. 270 Clauuch r. Casilebury, (1853) 23Ala., 83 .................. 479 Clay, Reg. v., (1851) 5 Cox C. C., 116 ..................... 540 Clayton r. Bussey, (ISIO) 30 Ga,, 946; 76 Am. Deo., 683 ......... ... lot Clayton r. Per Dun, (1816) 13 Johns., 218 ............ ...... -1>0 Clayton v. State, (lS8i) 15 Tex. Ct. App., 348 ............... ." |4 Clem v. Newcastle and D. B. Co., (1857) 9 Ind., 488; 68 Am. Dec., 653 ...... 102 Clem v. State, (IS73) 42 Ind., 42); 13 Am. Rep., 369 ............... 2l>5 Cicmons, People r., 37 Hun., 5SL ..................... 157 Cliue v. Guthrie. (1873) 43 lad., 227; 13 Am. Rep., 357 ............ 72 Cliverv. State, (1883) 45 N. J. L., 46 ..................... 314 Clough r. London and North Western Ry. Co., (1S71) 7 Ex., 2G ......... 63 Clough, People r., (1881) 59 Gal., 438 . ................... U2'-> Coal Creek Mining Co. v. Davis. (18rfl) 90 Tenu.. 711 ...... '. ....... 169 Coatos v. State, (1887) 50 Ark., 330; 7Am. Cr. Rep., 587 ........ 308, 3 10 Cobb v. Charter, (1865) 32 Conn., 358; 87 Am. Dec., 178 ... 4* Cobb r. People, (1877) 84 111., 511 ...... ............ 401,479 Cockburn, Reg. ., (1849) 3 Cox C. C., 543 ................. 313 Cockcroft, Reg, r., (1870) 11 Cox C. C., 419 ...... '.' ....... 541, sol Coohrane r. Willis, (1885) 1 Ch. App., 58 ... ..... 94 Colbern's Case. 1 Wheel C.C.. 479 ..................... 529 Coleman r. Woodworth, (1865) 28 Gal., 5GS ................. 501 Colberg, Com. v., (1876) 119 Mass.. 350; 20 Am. Rep., 3~,8, 1 Am. Cr. Rep.. 59 .. 433 Collins, People r., (1878) 53 Cal., 185 ............ ... ... 183 Collins r. Westbury, (1799) 2 Bay, 211; 1 Am. Doc., 6i3 ... ,'.'' ...... 46 Coney, Queen r., (1882) 8 Q. B. D., 553 ; 15 Cox C. C., 46 ... ...354. 432 433 Conuers v. State, 47 WK. 523 ............ 228 Connolly, Beg. r., (1867) 26 U. C. Q. B., 317; 3 Cr. Del.. 3?o" 323, 327 Connor r. People, (1893) IS Colo., S73; 36 Am. St. Rep., 2;).': 25 L. R. A., 34U 184, 186 Connor v. People, 26 N. Y., 281 ............ ...... 154 Connors r. People, (187 2) 50 N.Y., 240 ...... ... ... ... 517 Connors v. State, (1879) 47 Wis.. 523; 2 X. W. Rop.. 1143 152, 228 Couyers v. State, (1873) 50 Ga., 103 ; 15 Am. Rep., iiSG .. 510, 541, 543 Cook v. Wood, (I860) 30 Ga., 891; 76 Am. Deo., 077 ... ... ... 4 30-t Cooke v. Husband, (1857) 11 Md., 492 ........ ... IQ1 Cooper r. Phibbs, (1867) 2 Entr. & Ir. App., 149 .. .'.'. ...... 80, 90 Cooper, State r., (1849) 22 X. J. (L) 53; 5 Cr. )>., 344 .. -Hb' Corby r. Weddle, (1874) 57 Mo., 452 ..... ... ... 74 Oottingham, United States r.. (185 1) 2 Blatchf.. 170: ' 184 Countee r. State, (1895) 33 8. \V. R e p., 1_'7 ... ... 215 Couturier r. Hastie, (185U) 5 H. L. Cas., 073 ...... 7 Coviugtou r. Powell, 2 Mott , 229 ....... 117 Covingtoa, Sta'.o v., (1832) 2 Bailey, 569 "l77 230 Crawley v. Luchmee Rutn, (1SGG) 1 Agr;i, 129 ...... ...... 461 Croppy r. Durden, (1877) 2 Co\vp v 040 ; 1 Sin. L. C., 632 ..'.' '." 201 TABLE OF CASES. 5 PAGE Croft r. Lumley, (1857) 6 II. L. Cas., 672 147 Croghan v. State, (1868) 22 Wis., 414 ... 240 Crook r. Ccwang, 64, N. C., 743 148 Crosswell, People r., (18fi5) 13 Mich., 427; 87 Am. Dec.. 774 195, 324, 338 Crossvvhite, State r'., (1>95) 130 Mo., 359; 51 Am. St. Rep., 571 521 Crow, State v., (1853) 10 West L. J., 5(Jl ... .. 325 Crowell v State, (1887) 24 Tex. App., 404; 6 S. W. Rep., 318 346 Oroy i>. State, (1869) 32 Ind,, 384 509 Cuddy, Reg. r., (1843) 1 C. & K., 210 403 Culbreath r. Culbreath, (1849) 7 Ga., 64; 50 Am. Dec., 375 66, 122 Cuudy v. Lindsay, (1878) 3App. Cas., 459 7(5 Cunningham, State r,, (1890) 100 Mo , 382 243 Curby v. Territory of Arizona, (i895) 42 Pac. Rep., 953 158 Cushmau v. Flanagan, (1878) 50 Tex., 359 fclO Cutts v. Guild, (1874) 57 N. Y., 229 78 D Dailey, Com. v,, (1853) 12 Gush. (Mass.), 80 534, 535 Damp r. Town of Dane, (1872) 29 Wis., 419 462, 476, 484 Daniel, The Bank of the U. S. v., (1838) 12 Pet, 32 103 Daniell v. Sinclair, (1881) 6 App. Cal., 181 101 Darling v. Pierie, 15 Hun., 542 ... ... ... ... ... ... ... ... 479 Darling r. Williams, 35 Ohio, CO 6 Darrow v. Family Fund Soc , (18S9) 116 N. Y., 537; 15 Am. St. Kep., 430 ... 385 Darst v. People, (1869) 51 111., 280; 2 Am. Rep., 301 531 Davies v. Burton, (1829) 4 C. & P., 166 512 Davies v. Harness, 10 C. P., 166 63 Daries v. Marshall, (1861) 10 C. B. (N. S.) 697; 31 L. J. C. P., Gl 137 Davies, Reg. r., (185J) 7 Cox C. C., 104. Dears. C.C., 640 257 Davis v. Cundasami, (1896) I. L. R., XIX Mad., 3ti8 3 Davis r. Krum, 12 Mo. App., 279 115 Davis v. State, (1872) 37 Tex., 277 544 Dawes v. Harness, (1875) 10 C. P., 160 63 Dawsonv. State, (1874) 29 Ark., 116 308,310,520 Day, Beg. ., (1841) 9 C. & P., 723 153,243 Dean, People v., 58 Hun., 610 ... 544 De Bonneval v. De Bcnneval, 1 Curt., 85G ... ... ... ... ... ... 145 De Camp r. Hamma, (1S76) 29 Ohio, 467 74 Dee, Keg. v., (1884) 15 Cox C. C., 579; 14 L. R, Ir., 4G8... 17, 26, 30, 139, 277, 278, 294, 327, 350 Dela Gruerra, People v., (1864) 24 Cal., 73 480 De Leon, People v., (1888) 109 N. Y., 226; 4 Am. St. Rep., 444; 7 Am. Or. Rep., 314, 297 Delong, State r., (1895) 65 N. W. Rep., 402 216 Denning v. N orris, 2 Lev., 243 ... ... ... ... ... ... ... ... 478 Dennis, Com. v., (1870) 105 Mass., 162 385 Dent v. N. A. Steamship Co., (1873)49 N. Y., 390 148 Dentonv. Marshall, 3;] L. J. Ex., 89 46G Despard, Rex v., 28 State Trials., 489 189 Detwiler r. Bish., (1873) 44 Ind., 70 74 Devine ?. Edward, (1882) 101 111., 138 116 Deysher v. Triebel, (1870) 64 Pa. St., 383 117 Dickerman v. Lord, (i860) 21 Iowa, 338; 89 Am. Dec., 573 51 Dicks r. Hatch, (I860) 10 Iowa, 380 460 Dill r. Shahan, (1854) 25 Ala., 694; 60 Am. Dec., 540 104 Dillingham v. State, (1832) 5 Ohio, 280 530 Diman v. Prov. R. Co , (1858) 5 R. L, 130 99 Dixon r. Wells, (1890) 25 Q. B. D., 249 490 Doctor v. Hartman, (1865) 24 Ind., 2^1 462 Dockery v. State, (1893) 34 S. W. Rep., 281 355 Doddv. Hamilton, Taylors N. C. Term Rep., 31 231 Dodge v. Brittain, (1838) Meigs., 84 , 183,230 Dodge v. Essex Ins. Co., (1858) 12 Gray, 65 102 Dohring, People v., (1874) 59 N. Y., 374; 17 Am. Rep., 2493 153, 335 Dole r. Erskiue, 35 N. II.. 503 5, G TABLE OP CASES. PAGE Don Moran r. People, (187^) 25 Mich., 35(5; 12 Am, Kep., f,83...243, 248, C83, 286. 288, 331 Donovan, State ?-., (18S3) 61 Iowa, f!78; 4 Am. Cr. Hep., 26 224 -noody, Reg. i>. ( (1854) 6 Cox C. C., 4'i3 384 DOSS v. People, (1895) 41 N. E. Rep., 1093 299 Douglas, State v., (1891) 44 Kan., 618; 26 Pao. Rep., 476 188 Douglass v. State, (1854) 3 Wis., 820 527 Dowell v. Gruthrie, (1889) 99 Mo., 653; 17 Am. St. Rep., 598; 12 S. W. Rep., 900 164 Drevon v. Drevon, 34 L. J, Oh., 1G9 ... . ... ... ... ... ... 147 Driskill);, State, (1871) 45 Ala., 21 5:W Drobo Moyeer. Bipin Mundul, (1868) X W. R., 6 468 Ducherr State, (1849) 18 Ohio, 317 301 Duke de Cadaval v. Collins, (183S) 4 Ad. & El., 858 41 Ducker, State v., (1880) 8 Oreg., 394; 34 Am. Rep., 590 267 Duaoan, State v., (1845) 8 Rob. (La.), 562 181 Dyson, Rex v., (1823) Russ. & R., 523 391 E Sadie w. Slimmon, (1862) 23 N. Y., 9; 82 Am. Dec., 395 , ... 53 Eaglesfield u. Marquis of Londonderry, (1876) 4 Ch. D., 702 ... 9(i Earl of Aylesfordr. Morris, (1873) 8 Ch. App., 490 59 Easterly v. Eppelshemier, (1S87) 73 Iowa, 200; 34 N. W. Rep., 846... ... ... 74 Eberhart v. State, (1893) 134 Ind., 631; 34 N. E. Rep , ^37 157 Eddy v. Herrin, (1840) 17 Me,, 338; 35 Am. Dec., 261 50 Edward Senior, 32 L, R A., 183 , 519 Edwards ?, Brown, 1 Cr. & J., 312 72 Egginton, Rex t>., (1801) 2 Bos. & P., 508 ; 2 Leaoh C, C., 913 ; 5 R, R., 689 180, 185 Eggleston r, Ry. Co., 35 Barb., 162 149 Elkins v. State, (1853) 13 Ga., 435 541 Ellenbergr. State, (1896) 35 S. W. Rep,, 989 355 Ellsworth r, Moore, (1857) 5 Iowa, 486 478 Eilyatt v. Ellyat, 3 Sw. & Tr., 504 ... 364 English v. State, (1890) 15 S. W. Rep., 649 226 Enright, State 7-., (1894) 58 N. W. Rep., 901 ,. 325 Estate of White, (1869) 37 Cal., 190 479 F Fagan v. Scott, 14 Hun., 163 149 Fairbanks v. Snow, (1887) 145 Mass,, 153 ; 1 Am. St. Rep., 4,43 62 Farmers. Arundel, 2 Wm. Bl., 824 117 Farre's Case, Kel., 43 ... 300 Faulkner 7- Del. aud Rar, Can. Co., 1 Den., 441 485 Faust r. United States, Iti3 U. S., 452 225 Fazal Shau Khan r. Gafar Khan, (1891) I. L. R., XV Mad., 82 484 Fechenerr. Washington, (1881) 77 Ind., 3G6 479 Feer. Bigs and Irou Co., 13 Ohio, 563 484 Fernald, State v., (1893) 55 N. W. Bep., 534 246 Fetonr. Gregory, (1881) 130 Mass , 176 51 Fields, Com. r., (1832) 4 Leigh, 648 24,281,350 Fight . State, 7 Ohio, 180 ... 5>2 Fish t. Oleland, (1864)33111., 243 102 Fisher '. Com. (1867) 1 Bu*h., 211 ; 89 Am. Dec., 620 203 Fitzgerald v. Gavin, (1872) 110 Mass., 153 197 Fitzgerald ?-. Connecticut River P Co., (1891) 155 Mass., 155 ; 31 Am. St. Rep., 537 ; 29 N. E. Rep., 464 170 Fitzsimon, State r., (1893) 18 R. I., 236 ; 49 Am. St. Rep., 770; 27 Atl. R., 446 548 Flattery, Reg. r., (1877) 13 Cox C. C., 338 ; 2 Q. B. D., 410 29, 30, 277 FJeischman v. Walker, (1878) 91 111., 318 462 Fletcher Charles, Reg, 7;., (18(36) 10 Cox C.C., 248 195 Fletcher u. Holmes, (1864) 25 Ind., 458 471 Fletcher, Reg. v., (1859) 8 Cox C. C., 131 ... 195, 278, 322, 337 Fletcher??. Toilet, (1799) 5 Yes., 14 60 Florence, People t'., (1874) 59 N. Y., 83 , ... - ... 509,511 TABLE OF CASE3, PAGE Flowers, Reg, r., <1S86) 16 Q. B. D.. 643 258 Flynn. People ., (1893) 96 Mich., 270 ; 55 N. W. Eep., 834 246 Foakes r. Beer, (1884) 9 App. Cas., 605 3 Foley r. Greene, (1885) 14 R. I., 618 ; 51 Am. Rep., 419 53 Fooks, State (1S84) 65 Iowa, 452; 21 N. W. Rep , 773 522 Forbes 7-. Smith, (1855) 10 Ex. Rep., 717 ; 24 L. J. (Ex.), 167 483 Forshner, State r., (1801)43 N. H., f-9 ; 60 Am. Deo., 132 546 Foshay r. Ferjmson, (1843) 5 Hill, 154 37 Foster v. Dawber, (1851) 6 Exch., 839 3 Foster r. Macfcinnon, (1809) 4 C. P., 704 73 Foye, United States ?.. (1854) 1 Curt. C. C, 364 184 Frances, R. r., 13 U. C. Q. B., 116 277 Frazer, Beg. r., (18U1) 8 Cox C. C., 446 163 Freeman v. Curtis, (1862) 51 Me., 140; 81 Am. Dec., 564 117 Frevert?-. Swift, (IfSti) 19 Nev.,363; 11 Pac. Rep., 273 479 F ritzier v. Robinson, (1886) 70 Iowa, 500 ; 31 N. W. Rep., 61 86 Frost, R. -., (1840) 9 C. \- P., 102 520 Fry r. Derstler, 2 Yeates, 278 364 Fuller, Rex r., (1817) Huss. & R., 408 229 Fulmer r. Com., (Ib81) 97 Pa. St.,503... 203 G Ganpatrave. Bai Surj, (1870) Vfl B. H. C. R., A. C., 79 464 Garcia T. State, (1802) 26 Tex., 2G9 ; 8i Am. Dec., 605 345,540 Gardiner, People?-., 35 N. Y. (Supp.), 1072 Gar.iner r. Lane, (1865) 9 Allen, 492 ; 85 Am. Dec., 779 Gardner, Reg. r., (1845) 1 C. & K., 628 Garney, State ?-., 37 Me., 156 Garrard r. Frankel, (1863) 30 Beav., 445 24 Garrison r. Graybil), (1873) 52 Mo. App., 580 Gascoigne, Rex ., (1783) I Leach, 284 = George, State r., (18S5) 93 N. C., 5S7 Georgia Rail and Bank Co. ,. Harris, (1848) 5 Ga., 527 ... 471 German Bank r. American Fire Ins. Co., (1891) 83 Iowa, 491 ; 32 Am. St. Rep., 316 485 Gibson . Pelkie, (1S77) 37 Mich., 380 86 Gibson, People r., (1885; 58 Mich., 368 2 4 biddins, Reg. r., (1842) Car. & M., 634 Gill, People v., 5 'Ihomp. & Co., 508 53 Gizler v. Wilzel, 82 III., 322 Goldnamer v. O'Brien, (189ti) 33 S. W. Rep., 831 6 ( 6 > Goltrar. Sonasack. (1870) 53111., 458 Good v. Herr, (1844) 7, Watts & S , 253 ; 42 Am. Dec., '.;36 ... ... 93, 98, 105 Goodall r. MuBBOorie Bank, (1887) I. L. R,, X Al'., b7 41, 6( Goodenow v. Ewer, (1860) 13 Cal., 46! ; 70 Am. Deo. 540 Goodridge r. Washington Mills Co., (1893) 160 Mass., 234 ; 35 N. E. Rep., 484... 171 Gooroo Persad Roy v. Juggobundoo Mozoomdar, (1802) \V. R. F. B., 15 Gopi Nath >. Bhugwat Pershad, (1884) I. L. R., X Cal., 697 Gordon, People r.. (1880) 70 Cal., 407 Gore r. State, (Ifc8t) 52 A.k., 285 ; 12 S. W. Rep.. 564 - Gorrilr. Whittier. (1825) 3 N. H., 208 Gosha r. State, (187fi) 56 Ga., 33 ; 2 Am. Cr. Rep.. 889 434 Government of Bombay r.Ranmalsmgji, (1872) IX B, H. C.R., 2'42 ... 3 Graham r. Scripture. 29 Dow. Pr. (N. Y. Sup. Ct.) 50 Granice, People v.. (1875) 50 Cal., 447 Grant v. Reese, (1880) 82 N. Car., 72 Grant r . State, (1877) 3 Tex. Ct App., 1 524 k/ay v . Hawes, (1857) 8 Cal., 56S 476 Green r. Nixon, (1857) 23 Bear., 535 Green, State r., Whart. and Stil. Med.Jur.,4o9 Green v. Green, (1S89) 42 Kan.. 651 ; 22 Pac. Rep., 730 ; 16 Am. St. Rep., 510 .. Gregory v. Lincoln, (1882) 13 Neb., 352 Gregory r. Cleveland, (1829) 4 Ohio, 675 ... ... ... ., 4 ' 8 Griffith t> . Sebastian Co., (1887) 49 Ark., 24 ; 3 S. W. Rep., 886 8 TADLE OF CASES. PAGE Griffith?-. Townley, (1878) 69 Mo., 13; 33 Am. Rep., 476 , 95 Griffiths?-. Kellogg, (1876) 39 YVis., 290; 20 Am. Rep., 48 74 Griggs r. Howe, 31 Barb., 100 521 Grimes r. Briggs, (187-) 110 Mass., 446 51 Groton v. Hurlbcrt, (1853) 22 Conn., 178 ... 478 Guklici, People r.,( 1885) 100 N. Y., 503 522 Gwinn . Hamilton, (1856) 29 Ala., 233 67 H Haoklcyr. Headley, 45 Mich., 569 51 Hackett?'. Kin?, (1*63)6 Allen., 58 51 Hale v. Cole, (l*SS) 31 W. Va., 576 ; 8 S. E. Rep., 516 56 Hallett, Reg r., (1841) 9 0. & P.. 748 157,215 Haley v. State, (1887) 49 Ark., 147 ; 4 S. W. Rep., 746. 7 Am. Cr. Rep., 333. 247,349 Hamidunessa v. Gopal Chandra, 1 Gal., W. N., 556 4H9 Hamlyn v . Betteley, (188)) Q. B. D., 63 486 Hammond, State r., (1882) T' Mo., 157 219,290 Hammon's Case, (1812) Leach, 1C83 345 Hancock, 27 Hun., 82 480 Hancock r. State, (1883) 14 Tex. App., 392 509,522 Hands, Keg v., (1857) 16 Cox C. C., 188 ; 8 Am. Cr. Rep., 27'2 209 Hanmant v. Jayarao, I. L. R., XIII Bom., 50 137 Hanmanta, Reg. r., (1877) I. L. R., I Bom., 610 227 Hanselman, People v., (1888) 76 Gal., 400 181 Hanson r. Jones, 20 Mo. App., 595 ... ... ... ... ... ... ... 115 Harkness. ., Hyde, (1879) 8 Otto, 476 486 Harman u. Fisher, Lofft., 472 59 Harmon r. Harmon, (1873) 61 Me., 222 149 Harmony r. Bingham, (1854) 12 N. Y., 99 ; 62 Am. Dec., 142 44 Harper, State ?-., (1876) 28 La. Ann., 35 470 Harrington r. Heath, (1846) 15 Ohio, 4S3 492 Harris ?-. Peppere.l, (1870) 5 Eq., 1 240 Harris r. Shaffer, (1885) 92 N. Oar., 30 510 Hartigan, State r., (18RO) 32 Vt., 007; 78 Am. Dec., 609 215,217 Hartogv. Memory, < 18*5) 9 Davis , 588 472 Haryeyt?. Harris, (1873) 112 Maes., 32 86 Harvey r. State, (1890) 53 Ark., 425 ; 25 Am. St. Rep., 2^9 ; 14 S. W. Hep., 645 ... Hatter r. Greenlee, (1834) Port., 2C2 ; 26 Am. Dec., 370 Haven v. Foster. (1829) 9 Pick., 112 ; 19 Am. Dec., 353 91 Haverly Invincible Mining Co. v. Howcutt, (1882) 6 Colo., 574 47^ Hawkins, R. r., (1704) East P. C., 485 300 Hawralty r. Warren, (1866) 3 C. E. Green, 1^4 ; 18 N. J. Eq., 124 ; 90 Am. Dec., 613 102 Hayoraft v. Creasy, (1801) 2 East, 92 ; 6 R. R., 380 57 Hayclock r. Haydock. (It 81) 7 Stew. 570 ; 33 N. J. Eq., 494 ; 38 Air. Rcp.^ 385 .. 55 Haynes v. Rudd, 30 Hun., 237 53 Hays r. People. (1841) 1 Hill, 351 314. 374 Hays, Stater., (1891) 16 S. W. Rep., 514 190 Hazetrigg r. Donaldsoii, 2 Mete. (Ivy.). 445 45 Heacock v. Hosmer, (188t) 109 111., 245. 510 Heaps r Dunhaven, (1880) 95 111., 583 50 Heber, Rex. r., 2, Barn., 101 494 Hecht r. Batcheller, (1888) 147 Mass., 335 ; 17 N. E. Rep., 651 ; 9 Am. St. Rep., 708 84 Heely r. Barness, (1847) 4 Den. (N. Y.), 73 521 Hcgarty v. Shine, (1878) 14 Cox C. C.. 124 ; 2 L. R. Ir., 273 : 4 L. R. Ir., 288 198, 290 Hehir, Reg. v., (1S95) 2 I. R,, 709; 19, 83, 111, 124, 126, 127, 129, 131, 132, 259... 263, 271, 280 Heilbron v. Campbell, (1899) 23 Pac. Rep., 122 480 Heller, People ?., (1878) 2 Utah, 133 .! 527 Henderson r. State, (1876) 1 Tex. Ct. App., 432 347 Henkel v. Pape, (1870) L. R. 6 Exoh., 7 87 Hennessey, State, r., (1872) 23 Ohio. 339 ; 13 Am. Rep., 253 , 203 -, Porter, (1858) 10 Gal., 555 501 TABLE OF CASKS, 9 PAfltB Pesketh n. BraAdock, 3 Burn, 1847 478 Hewettn Jones, 11874) 72 HI,, 208 74 Heydnfeldt v. Towns, (1*855) 27 Ala., 423 478 Heywardr, Mayor, Ate., of New York, 8 Barb., 439 508 Hill ?-, People, {1867) 16 Mioh., 357 532, 533 HHisfcSneH, (l870)104Mass., 173;6 Ass, Bep.,216 109 Hitchcock v. Giddiugs, Dan. Rep., 1 ... 79 Hoa-latid r. Creed, (1876) 81 III,, 506 .,. 461 Hobart v. Frost. 5 Daer, 6'72 470 Bodgscra, Rxr.,(181i)Ru8S. & R., 211 i 543 Hoffeditz r. Southern Fenn, R. A Mic, Co., (1889) 129 Pa,, 284^ IS Atl., Rep., 125 164 Hotfelec.Wilsm, (1892) 31 Pac, Rep., 469 169 Holborn t>, Bucknam, 78 Me,, 482 51 Ho] brook r. Cooper, (1880) 44 Mick, 373 51 HolJis, Queen .. (1883) 12 Q, B, I'.. 25 262 Hoilister, Com. r., (1893) 157 Pa,, 13.; 25 L, R, A., 349 185 Holmes r. Hill, (1853) 19 Mo., 159 51 Holmes. Reg, MIS' I) 1 C. C. Res., 334 , 551 Home Ins. Co, r. Security Ins. Co., (1868) 23 Wis., 171 503 Home Life Ins. Co. ?>. Dunn, (1874) 19 Wall, 214 487 Hopkins, Reg. r., (1842) C. & M., 25 i 196 Hoskins r. People, (187t) 84 II!,, 87 ; 25 Am. Rep., 433 527 Howland r. Manufac. Co., (1892) J56 Mas*., 542 4 Huber r. State, (1890) 123 lud., 186; 25 N. E. Rep., 904 157 Hackabee, United States .,(' 873) 16 Wai '.,414 ... 4(5 Hudsou v. State, (1880) 9 Tex. Ct. App., 151; 3a Am. Rep., 732 203 Huff. Stater., {1886) 11 Nev., 17 519 Hughes Queen \, (1879) 4Q. B. D., 614 494 495 Hull p.' State. (1868) 23 Wis., 580 ... 313 355 Hullhorst r. Tscharaer. (1883) 15 Neb., 57; 17 N. W, Rep., 259 ... 51 Humbler. Hunter, (1843) 12 Ad. &. El., N S., 316 75 Humfrey v. Uale, (1857) 7 E. & B., 266 149 Hunt r. Rousraanier, (1823) 8 Wheat., 174 lOi Hard w. Hall, (I860) 12 WH., 11 2 09.93 Hnrley r. State. (1674) 29 Ark., 17 ... 523 Huthrnaclier r. Harris Adm'r3,(1861) 38 Pa,, 491 ; 80 Am. Dec., 502 203 Ilott . Wilkes, (182">) 3 Barn. & Aid., 304 ; 22 R, E., 400 . 165 Imperial Loan Co. w. Stone. (1892) I Q. B., 601 13f! Imperial and Ass, of Trieste v, Funder, Gl Eng. W. R,, 116 91 Ins Co. v. Duun, (1879) 10 Otto, 457 487 i rick f. Fulton, il34 r >) 3 Gratt , 193 94 Invin v. Wilson, (L887) 45 Ohio, 426 ; 15 N. E. Rep., 209 82 Ighwardas Tribhovaudas f. Kalidas Bhaidaa, (IS'Jii) I. L. R., XX Bom., 779 ... 502 Jaoks, People v., (1889)76 Mich., 218- 42 N. W. Rep., 1131 544 Jackson v, Ashtou, (1834) 8 Pet., 148 , .,, 4(J2 Jacksou W. Cora, (' 870)1 ttrat., 1,56 524 Jackson, Rex v., (182ii) 1 Moody C. C., 119 ... ,. ... ... 253 Jackson, Rex v., (18^2) Russ. & R,, 487 ... .., ... ... 276 Jackson v. (State, (1830j 14 Ind,, 327 ... ., ,. . ... 203 Jackson tv State, 1 Tex. Ct. App., 303 544 J affray v Davis. (1891) 124 N. Y., 104 ; U L. B. A., 71 ... z Jansen, State v., (1880) 23 Kan., 498 , ... . 181,188 January v. State, 3 S. W. Hep., 179 ... ., '480 Javecharam, Queen-Empress v., (1894) I. L. B-., XIX Bom., 363 189 Jenks t>. Fritz. (184-t) I Watts & S., 201 : 42 Am. Dec., :T27 87 Jssoj>, Eg, r.. (1877) 16 Cox C. 0., 204 , , ... ... -fti TABLE OF CASE,-?. I'AGB Jijaji Pratapji tr. Balkrishna, (1892) I. L. R.. XVII Bom., 169 .,, *~ .. 499 Jivan Vasudev, Reg. r., Citedin VII B. H.C.R., Cr., 61 .......... ~ 507 Johnson v. Gird wood, 28 N. i T . Supp., 651 ... ... ... ... ... ... 137 Johnson, Reg. 75., (1841) Car. & M., 218 .................. ... 190 Johnson, Eeg. ?., (1865) 10 Cox C. C., 114 ; 12 L. J. (N- S.) 503 ... . ... 313 Johnson v. State, (1884) 43 Ark., 391 .......... ......... 52O Johnson T?. State, (1878)3 Tex. Cr. A pp., 593 ... . ............ 186 Johnson, State r., (1856) 28 Vt., 512 ......... ......... 55O Johnson, State^ (1877) 7u N. C., 209 .......... M ......... 314 Johnston r. Com., (1877; 85 Pa. 54 ; 3 Am. Cr. Rep., 30 ............ 301 Jones r. Clifford, (1876) 3- Ch. D., 779 ; 45 L. J. C., 815 ... -. ...... SO Joues r. James In re, 10 L. J., (Q. B..) 257 ............... 475, 501 Jones c. Jones, (1888) 108 N. Y., 415 ; 2 Am. St.. Rep , 447 .. . . 485, 4^9 Jones, Beg. v., (1864) L. B. f! C. C., 10 ; 4 L. T. (N. s!> 154 ; ... ... 245, 278 Jones, State tr.,(1856) 18 Tex., 874 ............... .. 524. 52R Joues t. State, (1889. 28 Tei. Ct. App., 42 ;9 S. W. Kep., 53 ...... 227, 273 Jordan r. Elliott, 15 Cent. L. J., 232 .................... 40 Jordan r. Stevens, (18G3) 51 Me., 78; 8: Am. Dec., Sort ... ... ... 93.100 Josliug r. Kingsford, (1863;13 C. B. N. S.. 44V ; 32 L. J. C. P., 94 ...... 84 Kadambinee Dosses r.Doorga Churn Dutt, Marsh., 4; 1 Hay, 25 , ... ... 4f>2 Kagelr.Totton, (188i) 59 Md., 447 74 Kandoth Mammi r. Neelancherayil, (1875) VIII M. II. C. R., 14 48-t Kashiuath ?;. Collector of Poona, (1884) I. L, R., VHI bom., 553 479 Kaufman, State v., (1879) 51 Iowa, 578 ; 33 Am. Rep., 146 ; 2 N. W. Sep., 275,... 514, 531, 535 Keater r. Ulster Road Co., (1843) 7 How. Pr., 42 508 Keene B. New England Mut. Ace. Ass.. (1894) 161 Mass>, 149 ; ?G X. E. Rep , 89J 173 Kelly n. Alcona Circuit Judge, (18SKI) 79 Mich.. 392 ; 44 N. W. Rep., U25 4:)L Kelly r. People. (1830) 132 111.. 363 ; 24 N. E. Rep., 56 &09 Kelly P. Solari (1841) 9 M. & W., 54 114,115 Kemp v. Pennsylvania R. Co., (1893) 156 Pa. 430 ; 26 Atl. Sep., 107t 163 Kenipr. State, (1850) 11 Humph., 320 ... 190, 230 Keudall, Com. r., (1873) 113 Mass^2lO- r 18 Am.Rep.. 469 W5 Keuney r. Greer, (1851) 13 111., 432 ; 51 Am. Dec., 439 47 Kennedy r. Panama Etc. Muil Co., ( 867) L.R. 2 Q.B., 580 83,87 Kern r. Hnidekoper. (1881) 13 Otto, 485 ... 487 King Iron Bridge and Mfg. Co. v. County of Otoe., (1887) 13 Davis, 225 472 King r. State, (1887)3 S.W.R^p., 342 288 Kingr. Com., (1892)208. W. Rep.. 224 24fi Kiug r.Doolittle, (1858) 1 Head. 77 95 Kingston Bank r. Eltiuge, (I8fi9) 40 N. Y. ; 391 116 Kirby v. Ingersoll, 1 Harr. (Mich.), 172 fiO Knapp. State *., (1864) 45 N. H., 148 546 K-jight, People r.. (1895) 43 Pae. Rep., (Gal.) 6 152 Knisley r. Pratt, (1896) 14S N.Y., 372; 32 L. R. A., 367 172 Kocourek v. Marak, (1881) 54 Tex., 201 ; 33 Am. Rep., U23 38 Komby . Central National Bank, (1873) 51 Mo., 276 115 Koontzz. Central Nat. Bant, 51 Mo., 275 116 KoylashChunderr.Ashruf Ali, (1874) XXII W. R., 101 465 KdstaaRau, (1S72) YII M.H.C. R., 58 507 Krishiiasami r.Kanakasabai, (1890) I. L.R., XIV Mad., 183 469 Kukier Mather, Queen v., Unreported ... ... ... ... ... 450 Kmnaraeami, Queen r., (1865) II M. H C.R., 331 225 Kyle ). Kavauagh, (1869; 103 iiass., 35ti;4 Am. Rep., 560 78 Larlkurarbai v. Ghoef Saraaugji, (1S70) VII B. H. C. R., 160 477 Liidli Begam r. Rajo Rabin, (1888) I. L. R., XIII Bom., 650 4H3 1 a'mouey Dassc-e r. Jaddooriauth Shaw, I W. R., 279; 1 In. Ju-., N. S., .'(19 ... -1HJ Lancaster Ccunty B.uik, State r., (1879) 8 N>'b., ^18 501 TABLE OF OASES. 11 PAGE Lnnnan, Com. r., (I860) 13 Allen, 563 .,, 619 La Pierre v. Chicago G. T. R. Co., (1 894) 99 Mich., 212; 58 N. W. Eep., 60 ... 169 Latter r. BraddelJ, 50 L. J.-Q. B., 448 228 Larger, State r., (1870) 45 Mo., 510 , ... 509 Laurintz, People v,, (1896) 46 Pac.. (Cal.) Rep., 613 316 Lawrence r. Beaubien, (1831) 2 Bailey, 023 : 23 Am. Dec., 155 66 Lawrence c. Anu Nat. Fank, (1873) 54 N. Y., 432 lit; lAwrence. Beg, r,, (1851) 4 Cox C C., 438 2^0 League . State, 36 Ind., 259 ,. 530 Leary r. Bostan R. R. Co., (1885) B9 Mass., 58j 52 Am. Rep., 733 . . 171 Leddington, Reg. .. (1839) 9 0. &P., 79 387 Ledgai-d v. Bu'l, (1886) L. B. XIII I. A., 144 ; I. L. R., IX All., 191 ... 4S3, 492 lee u. Tillotson, (18)0)24 Wend., 337; 35 Am. Dec,, 626 259,510 LeMott's Case. Kel.,42 301 Levin v. Russell, (1870) 42 N. Y., 251 522 Lewellen v. Garret t, (1*77) 58 Ind., 442 ; 2G Am. Eep., 74 110 Lewis r. State, (1857)30 Ala., 5 MS Am. Dec. 113 281,283,288 Linden Grand M. Co. v. Sheplar, (1881) 58 Gal., 245 486 Line r. Blizzard, (1 -80)70 Ind., 23 38 Lock, Keg.c.. (1872) 12 Cox C.C., 244; 2 C. C. lies,, 10 5 27 L, T, N r . S.,661 13, 19, 23 Lockhart r. Mayor of St. A 1 bans (1888) 21 Q. B. I)., 188 504 Lockwood, State r., (1877) 4S Wis., 403 531 Loew r. State, (1884, 60 Wis., 559 ; 19 N. W. Rep., 437 ; 67 Iowa, 641 ... 609, 520 Logan r. Austin, I Stew., 476 ... ... ... ... ... ... 5 Logan v. Lognn, (1883) 22 Fla., 561 ; 1 Am. St. Rep., 212 60 Lonergan v. Buford, (1893) 41 Davis, 58'J 44 Long. Keg. v., (1831.) * C. & P., 423 _ ... 424 Long, State v , (I 5 85) 93 N. C., 542 CIO Longstreeth, Rex ?-., (1826) 1 Moody C. C,, 137 253,255 Loiigton, State r., (1883) 35 Kan., 375, 11 Pac. Rep.. 163" 520 Looperu. Bell, (1858) 1 Head., 373 Lorton >-. State, (1841) 7 Mo., 55 ; 37 Am. Dec., 179 203 Love v. Mate, (1S87) 78 Ga., (56 ; 3 S. E. Rep., 893 ; 6 Am. St. Rep., 234 ... . 37 Love r. State, 15 Tex. Ct. App., 563 544 Lovell v. Wall, (1893) 12 Smth. Rep., 659 . . 97 Low w. Rioe, (1811) 8 Johns., 499. ... 480 I.owry v. Bourdien, Doug. 468 ... ... ... .,. .,, . ... ... 117 Lucas v, Lucas, (I860) 30 Ga., 191; 76 Am. Dec.. 042 ... 101 Lacking r. Denning, 1 &Uk , 200 470 Lung, State r., (1 891) 21 Nev,, 209 -, 37 Am. St. Rep., 505 ;. 28 Pac. Rep., 235 ... 281 Lyle v. Shiunebarger, 17 Mo. App., 66 91,115,119 Lynch r. State, (1862) 15 Wis., 38 509 Lyons, Reg, v., (1811) Car. & M., 217 ... ... 180 M Macdonald v. RIddell, (1871) XVI W. R.. Cr., 69 . . 464 Madiiii Mohun r. Queen Empress, (1892) I. L. R., XIX Cal., 572 358 Mahammad Azmat Ali r. Lalli Begum, (1881) L. R., IX I. A., 20 ; I. L. R., VIII. Cal., 42 499 Maine, State r., (1858) r.7Coun., 281 530 Manessv. Henry, (1892) 96 Ala., 454 ; 11 South Rep , 410 3 Manoharr. Bhivrav, (1865) II B. H C. R, A,C., 374 476 Manohur r. Thakur Das, (l88) I. L.R., XV Cal., 319 3 ( 472 Mansfield v Swan, (1884) 41 Davis, 379... . 3 Mansfield, Stater., (1&67) 4, Mo., 475 524, 530, 533, 53(i Maunfacburer's Accident Indemnity Co. r. Dorgan, 1,1*93) 58 Fed. Rep., t)45 ... 173 Harris r. Harris, 2 Sw. & Tr., 530 ... 304 M'/rthur, Shaw, 211 ... 317 Martin r. Hamlin, (lg9) 18 Mich.. 354 ; 100 Am. Dee., 181 102 Martin v McCormick, (1853) 8 N. Y., 331 94 Jdartia v. Hoiighton. 45 Barb. , 258 ... ... -.. ... ... .., ... ] 19 Martin, Reg ., (1840) 2 Moody C. C., 123 -, 9 C. & P., 213 312 Martin, Rex -., (1811) B. &. R., 19fi ; 90. &P..2W : fi C. &P.. 562 ..229, 312. T.44 54 Marvin r. Mnrvin, i.lSUO) 52 Ark.,42'o ; 12 S. W. Rep., 87.' ; ^ Am. St. Rop., 191... .'0 12 TABLE OF CA?E3. ; .: -. Jfascolo v. Montesanto, (ISW) SI Conn., 50; 23 Atl. Kep., 714; 29 Am. St. Rep., 170 SO Mather, People v., (1830) 4 Wend., 229 525- Mathew t>. Ollerton, Comb., 218 Matbews w. Baxter, (1873) L. R., 8 Exch , 132 13. State, (18SO) 8 Tex. Ct. App., 315 ... 509 Maulr. State. (1PSO) 25 Tex; 166 , 509 Maxwell v. Griswold, (1850) 10 How., 242 44 Mayr. State, (1843) 4 Ala., 542 Mayers, Reg. r., (1872) 12 Cox C. P., 511 23, 24, ?78 Maysr. Pricton, (1874) 21 Wai'.. 414 469,485 McCaffrey, State r., (1884) 63 Iowa, 479 22t> McCall v. United States, (187H) 1 Dak., 320; 40 N. W. Rep., 608 520 MoCartey, State r., (1871) 17 Minn., 76 2HG McCanley r. Hurdoek, (1884) 97 Ind.. 219 47-i McClnsky Jta parte, (1889) 40 Fed. Rep., 71 526 McCowba r State, (1838; 8 Ol.io, 643 547 McConl, People v., (1889) 76 Mich., 200 ; 42 N. W. Rep., 110fi ; 8 Am. Cr. Ktp., 117 180 WcCormick r. Penn. Central Railroad Co., (1872) 49 >. Y., 33 477, 4S.~> MeCormick n. Miller, (1882) 102 111., 208; 40 Am. Rep, 577 ., 100 McCoy r. State, (1885)46 Ark., 141 52O McCue v. Klein, (1883) 60 Tex.. 1(>8 ; 48 Am. Rep., 261 6, 336, 377, 407 McDaniel, Rex v., (1755) 1 Fost., 121 229,235 McDermott r>. State, (1862) 13 Ol.io, 332; 82 Am. Dec., 444 54f> McDonald, Com. v., (1872)110 Mass., 405 156,215 McDonald, People r., (1861) 9 Mich., 150 311 McDonald v Riddell, (IH71) XVI W. R. Cr., 69 464 McGann, People v., 43 Hun., 5."> 50^) McGa-try. People r.. 2 Lans., 227 517 McGinn v. To bey, (1886) 62 Mich., 252 ; 4 Am. St. Rep., 848; 28 N. W. Eep., 818... 72 McGavaran, Reg. r, (1852i 6 Cox C. C., (i4 245 McKay, People r., (1^20) IS Johns. Rep., 212 51 3 McLean, People v.,( 1888) 7l Mich.. 309; l5Am. St. Bop., 263; 38 N. W. Rep., 917 552 KcMahon r. State, (1876) 1 Tex. Ct. App., 10-J y44> McMahon, State*., (18821 17 Nov., 365 F.O'J McMillan . Nicholls, (1878) 62 Ga., 33 478 McMinn -. Pittsburg M. & Y. Ry Co.. (1892) ; 147 Pa St.. 5 ; 23 \ tl. Kep., 325 ... 16* MoNaughten v. Partridge, (1842; 11 Ohio , 22:< ; 33 Am , Dec., 731 102 WcQuirk r. State, (1838) 84, Ala., 435 ; 5 Am. St Rep., ?8) ; 4 South. Rep., 775 ... 147. 216. 2S2, 824, ?29, 547 Meaeham r. New York State Mut. Benevolent Assoc., (1890) 120 N. Y., 237 ; 24. N. E. Rep., 283 385 Meek v. Atkinson, (182) 1 Bailey's Law, 84 ; la Am. Deo., 653 52 Mehegan, Beg. T?..(1856) 7 Cos C". C , 145 313 Mehtab Bai v Nauak Chand, (1878) P. R., No. 59 500 Hellish v. Robertson, (1853; 25 Vt., 6u3 102 Membery v. Great Western Ry. Co., (1889) 14 A p. C:>3., 179 .. .,, ... 108, 175 Merchant's National Bank r. National Eagle Bank, (1869) 101 Mass., 281 ... 116 Meredith, Reg. rr., (183S) 8 C. & P., fiS9 312 Merelethv. People, (187i>) 84111., 479 ; 2 Am. Cr. Rep., 4J8 524 Merry n. Green, (1841 1 7 M. & W., 6:3 ^ 127, 20 8, 259 261. H6S Metcalf, People w, (1&2J) 1 Wheel. C. C., 378 '279 Metcalfe r. Watertown, (1888) 21 Davis, 586 472 Meyer r. Delaware R. C. Co., (1879) 10 Otto, 457; 487 Middlemore, Keg. r., 6 Mod., 212 , 524 Middleton, Reg. r., (1873) 2 C. C. Res, 38 ; 12 Cox. C. C., 426 1, 310, 111, 130 139, 230 252, -J54, 255, 256, 2(iO, 272, 298 Midland Ry. Co. v. Johnson, 6 H. L., 811 102 Mighellr. Sultan of Johore, (1894) 1 Q. B., 149 477 Millard, Reg. v., 22 L J. M. C., 108 494 Mil'err, Buyer, 08 N. W. Boo., 859 6 6* Miller r. MilJer, 68 Pa., 486 " 151 Miller r State, (18"!) 4"> Ala , M 520 Miller r. Minor L. Co., (1S93; 98 Mi ah., 163 ; 39 Am. St. Rep., "24; 57 N. W. JHeiN 101 62 TABLE OF CASES. 13 PAOB Miller, State r.. (1890) 42 La. Ann., 1183 ; 21 Am. St. Rep., 418 ; 8 South. Rep., 309 310 M lines r. Duncan, 6 B. C., 671 ; 9 D. & R., 731 116 Minakehi *< , Subramanya, (1887) L. R. XIV I. A., 160; T. L. R., XI Mad , 26 ... 46;$ Mininger v. Carver Commissioners, (1865) 10 Minn., 133 470 Mink. Com. 7-., (1877) VW Mass., 4*2; 25 Am. Rep., 109 378, 385 Mitchell r. Kintzer, (1847) 5 Pa. St., 216 ; 47 Am Deo., 408 60 Mitchell v. Lapagf, Holt. N. P., 253 75 Mitchell v. Work, (1881) 13 R. I., 64."> 548 Modun Mohun Gh-se v. Bo rod a Sotidori, (1880) VIII C. L. R., 261 491 Mohammad Hossein v Akhaya Numyan, (18 19) II B. L. K. App., 42 4(i5 Mona Puna, Qu*> en-Em p ress r., (1892) I. L. R., XVI Bom., 661 187 Montgomery v. Town of Scott, (1873) 32 Wis., 352 47iJ Moody, State v., (18o7) 24 Mo , 560 530 Moon* State v., (1877) 41 Wis., 684 544 Moore w. Eddowes, (I834v 2 Ad. & EL, 133 ... 117 Mo'-re v. Gamgee, (1890) 25 Q. B. D., 244 475, 501 Mo"re r. State, (1886) 22 Tex. App., 117; 2 S. W. Rep., 634 530 Morolaml r. Aitchison. (|8'>7) 19 Tex., 303 91 Morey, State v. (J853) 2 Wis.. 494 ; 60 Am. Dec., 439 54-0 Morgan v. Edward*, (1860; 5 H. & N., 415 501 Morgan r. Ravey, ('S(il) 6 II. & N., 270 159 Morphew, Rex ., (1814) 2 M. & S., 602 , 522 Morris Gihner, (U89 22 Davis, 315 472 Morrison, People v.. (1854) 1 Parker Or., R., 626 ... 153, 228 Morton, People ., (1885) 4 Utah, 407 ; 11 Pac. Rep., 512 177 Morton, Queen-Empress r., (1884) I. L.B., IX Bom., L88 507 Moses r. Duboi?, 1 Dudley (Law), 2U9 ... ... 4 Moses v. McFerlau, 2 Burr., 1005 121 Aiostyn v. Fabrigas, Cowp., 72 483 Motilal Ramdns v. Jaranadas Javerdas, (1865) II B. H. C. R , 40 ... 490 AJoung Shoay Att v Ko Byaw, (187H) L. R. Ill L A., 61 ; I. L. B,., 1 Cal., 330 .. 55 Mo watt r. YVright, (1828) 1 Wend., 355 ; 19 Am. Dec., 5u8... 93 Mucklow, Reg. 7-., (1827) 1 Moody C. C., IRQ 257, 200 Mullina, Reg. v., (1848) 3 Cox C. C., 526 187, 189 Mullen, Com. v., (18 i7) 97 Mass., 545 519 Murphy, Com. v., 1 Mete., 1365 535,530 Murphy, Com. v., (1695; 165 Mass.. 66 : 52 Am. St. Rep., 49ii 314 Murphy, State f., (1844) 6 Ala., 765 ; 41 Am. Dec., 79 276 Murphy v. State, (1884) 97 Ind., 579 ... 530 Murray, People v , i!8fc3, 52 Mich., 288 ; 17 N. W. Rpp.,R43 522 Murray r. Queen-Empress (1893) I. L. R., XXI Cal., 103 218 Murray, State p., (186*9) ft3 N. C, 31 549,550 Murray v. State, (1870) 34 Tex., 331 480 Mnt trie. State n, 15B Mass., 19 2 Myers, People r., (1871) 1 Colo., 508 464 N Naimudda v. Scott, (18G9) III B. L. R., 283 465 Narain Das v. Kotu Mai, 1883 P. K., No. 132 473 Xaro Hari v. Anpoornabai, (1874) I. L. R., XI Bom., 160 (n) ... ... ... 4(i7 National Steamship Co. v. Tugman, (1882) 16 Otto, 118 488 Naunhoo Sineh v. Tofan Singh, (1870) XIV W. R., 229 46t Nayamuddin, Queen-Empress v., (189L) I. L. R., XVIII Cal., 494 ... 419, 420, 4!2 Nay lor r. Winch, I Sim. & St., 555 103 Nealey v. Greenough, (1852) 25 N. H., 325 51 Ned v. State, (1857) 33 Miss., 364 509 Nehora Roy r. Radha Pershad Singh, (1879) IV C. L. R., 353 468 Kelson v. Campbell, (1^90) 1 VfaAi., 2iil ; 24 Pac. Rep., 539 486 Nelson r. Davis, (1872) 40 Ind., 366 102 New Albany R. B. Co r. Combs, (1859)13 Ind., 490 ".' ... 48(> Kew Comb v. State, (JSoD.i 37 5di>s., 383 526 NewOr.eans, M. & T. R. R. Co. r. Mississippi, (1880) ]2 Otto, 135 487 Nicho , Rex .. (1807") Russ. & R., 130 2^5 NidhiJLal r. Mazharllussaiu, (1884)1. L. R., VII All., 230 404 TABLE OF CASES. PAGB Kobeen Kishen Mpokefjee r. Shib Pershad, (1867) VII W.B., 490 ....... 4*14 Norden's Case, Fost. C. C., 129 ........................ 18:5 North and West Branch By. Co. r. Swank, (1884) 105 Pa., 555. ......... 1G4 Northrop r. Graves, (1849) 19 Conn.. 5-18 ; 50 Am. Deo., 204 ...... 113, 119, 121 Norton r. Maiden, (1838) 15 Jle., 45; 32 Am. Dec., 132 ............. 91 Nott, Com. w , (1883) 135 Mass., 269 ....... ............. 185 Nyamtula v. Nan a, (1883) I. L. R., XIII Bom., 424 ................ 500 o Oakley v. Aspinwall, (1850) 3 N. Y., 547 ................... 481 Ober, State t'., (1872) 52 N. H., 459; 13 Am. Rep., 88 ............ 518 O'Brien r. Cunnrd Steamship Co., 154 Mass., 27 ............... 144 O'Brien v. State, (Is79) 6 Tex. Ct. App., . Throckmorfcon, (1893) 18 S. E. (Va.), Rep. 2s5 ............ 102 Oswald v. Sproehule, (1855) 16 111. Ap., 368 .................. 102 Oulton v. Radcliffe, 0874) L. R., 9 C .& P., 189 .. ............ 473,483 Owens v. Lewis, (1877) 4G Ind., 498 ..................... 4 P Paohaoni Awastbi r. Ilahi Bakhsh, (1882) I. L. B., IV All., 473 .......... 491 Paddock r. Wells, (1846) 2 Barb. Ch., 333 .................. 478 Page, Beg. v., (1846) D UoxC. C., 133 .................. 26,216 Papet v. Marshall, (1884) 28 Ch. D., 255 .................. 08 Palmer r. Broder, (1891) 78 Wis., 483 ; 47 N. W. Rep., 744 ............ 197 Parankusan^r Stuart, (18 >5) II M. B.C. R., 396 ............ 357 Parbutty v. Higgin, (1872) VIII B. L. R. App., 98 ; XVIII W. R., 47"> ...... 512 Paris r. State, (I860) 36 Ala., :,32 ..................... 477 Parker,. Com v., (1845) 9 Met. 2-. Mortimere, (18'8) 7 Watts, 372 104 Raumalsinjiji, The Government of Bombay v., (1870) IX B. H. C. R., 242 ... 462 Ransbottom r. State, (1896) 43 N. E. Bop., 218 ; 18 C. L. M., 305 157 Ransom, People ., (1831) 7 Wend., 417 536 lliUhbun, People v., (1839) 21 Wend., 509 ... 515,5:5 Ray V. Hank of Kentucky, 3 B. Mon. 510 122 Bay t. Smith, (1873) 17 Wall., 411 ' 522 Read, Reg. v. (1849) 3 Cox C. C., 377 ; 4 C. & K., 957 ; 1 Den. C. C., 266 ... 139, 312 Real Estate Sav. Institution t?. Linder, (1873) 74 Pa., 371 117 Record v. State, (1872) 36 Tex., 521 520 Reed, State v., (1867) 39 Vt., 417 ; 94 Am. Dec., 337 549, 550 Reedland, Reg. v., 4 Post. & F., 867 158 Reg. v. Long (1831) 4 C. & P., 423 424 Regan, Com. v., (^70) 105 Mass., 593 546 Regan. Stater., (18,7) 67 Me. ,380 4JO Keid State v., (1888) 39 Minn., 277 243 Reynolds T?. People, 41 How. Prac.. 179 152 Reynolds v. State, (1889) 27 Neb., 90 ; 20 Am. St. Rep., 659 ; 42 N. W. Rep., 'J03. 2^8 1G TABLE OF CASES. PAGE Bice v. State, (1R95) 35 Fla., 2?G ; 48 Am. St. Kcp., 245 ; 17 South. Bep., ... 547 Richards, Queen v., (1877) 2 Q. B. D., 311 206 Richardson v. Duncan, (1 816) 3 N. H., 5'j8 Ritchie v. State. (1877) 58 Ind., S55 210, 54fi Ridout v. State, (1879) 6 Tex. Ct. App., 249 1U Riley, Keg. v , (1897) 18 Q B. D.. 481 545, 552 Roadley, Reg. v., (1*80) 14 Cox C. C.,463 3i3 Robins, Reg. v., 2, Moo. & Rob., 512 551 Robinson, People v., (1873) 46 Cal ,94 520 Robinson, State v., (1891) 43 La. Ann., 383 ; 8 South. Rep., 937 Rodgere, Hex. ., (1811) 2 Camp., 654 543 Rogers v. Ingham, (1870) 3 Ch. U., 35. State, (1859) 33 Ala.. 354 524 Rosinsld, Reg. v., (1824) 1 Moody C. 0., 19 245, 293 Hos v. Ajmstrong, (I860) 25 Tex. Supp., 354 : 78 Am. Dec., 574 Roy t>. Union Merc. Leo., (1891) ?6Pac. Bep., 936 484 Royal, People v , (1*78) 53 Cal.. P2 27.276 lluhland v. Supervisor's of Hazel Green, (1882) 55 Wis., 608 ; 13 X. W. Rep., S77. 502 Russell, Beg. * M (1883)90. * P., 80 ();! Moody, 888 387' Russel', State v., <18SI) 33 La. Ann., 135 520 Ruth v. State (1879) 21 Kan., 583 156, 244, 2-16 Butter v. State, (i 855) 1 Iowa. 99 4'14 Rjan, Reg. v., (1843) 2 Cox C. C., 115 26, 322 s Saofcett, State v., ( 1888 ) 38 N. W. Rep., 773 535 Sachs, State v. (I (-92) 29 Pae. Rep., 4!6 479 Sacramento, United States ., ( 1875 ) 2 Won., 239 ; 25 Am. Rep., 742 ... 523, 742 Saeger v. Runic, ( 1892 ) 148 Pa., 77 ; :3 Atl., \006 3, 106 Samshere Khan v. The Empress, ( 1880 ) I. L. R., VI Cal., 154 ... 419, 451, 453. .,(lS3S 80. & P., 265 175,277 Scanlon r. Wedger, (18931 56 Mass , 462 ; 31 N. E. Rep., 611' ; 16 L. R. A., 395 .. 164 Schaper r. Schaper, (1877) 84 III., C03 . 74 Scharmer r , Farwell, 5li III., 542 51 Schmidt . Oregon Gold Mining Co., (185) 28 Oreg., 9 , 52 Am. St. Rep., 759 ; 40 Pac. Rep., 406, 1014 471 Schoener v. Lissaner, (1887) 10T X. Y.. Ill ; 13 N. E. Rep.. 741 51 SchofieUl r. Walker, (1885) 58 Mich., 98; 24 N. W. Rep., 6C4 56 dehorn v. Berry, 63 Hun., 1|0 ; 17 N. Y. Supp., 672 4. 384 Schultzt?. State, ()8>6j 20 Tex. Ct. App., 3(H 544 Schuy. kill County v. Copley, (.871) i>7 PJ,., 386; 5 Am. Rep., 441 74 Scott v. Kelly. (1875) 22 \V ;.!!., 57 485 Seott v. Simons, (1881) 70 Ala., 357 17-$ Scotton.Reg. v., (I844j 5 Ad. &E1. N. S.,493 4'J7 Searing . Farato^a, 36 Hun., 907 4 Sharina, Empress '. (1^84) P. R., Cr. No. 42 508 Sharp v. State, (1883) 15 Tex. App., 171 157, 2-15, 245, 308 Sharp r. State, (1855) 17 Ga., 290 543 Shaw, Reg. r., (18(15) 10 Cox C. C , CG ; 34 L. J. (M. C.), 169 495 Shaw ?-, Spooner, (1838) 9 N. H.. 197 ; 32 Am. Dec., 348 53 Shaw v. Woodcock, (1827) 7 Barn. & Cr., 73 43 Shay r. Thompson, 59 Wis., 540; 48 Am. Re^., 548 ; 18 N. W. Rep., 473 ... 5, 6 Sheetul Pershad r. Junmejoy Mullick. (1869) XII W. R., 244 521 Shephard, State v., (18:28) 7 Conn., 54 279. Shephard, Reg. r.. Dears C C., OOG, 2 Jur. X. S.. 90'; 23 L. J. M. C., 52 181 TABLE OF CASES. 17 PAG 8 Sherwood v. Walker, (1887) GG Mioh.. 568 ; 33 N. W. Rep., 919; 11 Am. St. Rep., 531. 85 Shields, Stater., (1877) 45 Conn, 23t! 155 Shivram Vithal v. Bhagirathi Bai, (1869) VI B. H. C. R., A C., 20 491 Shotwell v. Murray, (1815) Johns. Ch., 512 102 Shropshire v. State, (1351) 12 Ark., 190 ... 479 Shumbhu Nath Sarkar v. Ram Kamal, (1883), XIII C. L. R., 212 524 Shushee Bhoosun v. Muddon Mohun Chattopadhya, (1878) H C. L. R., 297 ... 5ll Shutle v. Thompson, (1872), 15 Wall., 151 , ... 521 Sibertv. MoAvoy, (1853), 15 111., 106 102 Sigourney v. Sibley, (1838) 21 Pick., 101 ; 32 Am. Dec., 248 482 Sikundur Queen v., Ill N -W. P. H. C. Rep.. 14'j 359 Silliman r. Win (1845), 7 Hill (N. Y. ), 159 117 Sinclair, Reg- v. (1867) 13 Cox C. C.. 28 2P1 Sivaraman Chetti v. Iburam Saheb, (1895) I L. R., XVIII Mad., 327 4F4 Skeatev. Bcale, (1840). 11 A. & E., 983 42 Slanter v. Hallowell, (1883) 90 Iiid., 286 4.81. Slattery, Com. r. (1888), 147 Mass., 423 ; 18 N. E., 399 215, 39y Smillie v. Titas, 32 N. J. Eq., 51 50 Smith r. Atwood, (1853) 14 G-a., 402 5! Smith v, Bromley, 3 Dougl., 695 43 Smith v. Curtis,' (1857) 7 Cal., 584 484, Smith v. Com. (1826), 14 S. & R., 69 3<);t Smith v. Compton. (1850) 6 Cal., 24 50l Smith v. Elder (1808) 3 Johns. Rep. (N. Y.), 105 484 Smith v. Hughes (1871) 6 Q. B., 607 18,2^9 Smith v. Monteith (1844) 13 M . & W., 427 48 Smith, People v., (1861) 9 Mioh.. 193 530 bmith, Peoples, (1873) 53 N. Y., Ill 291) Smith v. State, (1861) 12 Ohio, 466 ; 80 Ain. Dec., 355 13, 314 Smith v. State, (1889) 88 Ala., 73 ; 7 South Rep., 52 509 Sneed v. State, (1878) 4 Tex. Ct. A pp.. 514 2-26 Sneff, State v., ( 8S7) 22 Neb., 481 ; 35 N. VV. Rep., 219 177 Soorendro Pershad v. Nundun, (1874) XXI W. R., 196 524 Sornborger v. Sanford, (1892) 34 Neb., 498; 52 N. W. R., 368 62 Soulev. Bonney, (1853)37 Me., 128 51 South. State v., (1859) 4 Dutch., 28; 75 Am. Dec., 250 14 Southern Pac. R. R. Co. v. Superior Court Kern. Co., (1879) 53 Cal., 471 480 Spaids v Barrett, (1870) 57 111., 289 ; 11 Am. Rep., 10 2, 41, 4f> Speaks, Stater., (1886)95 N.C. 689 509 Speiden v. State (1877), 3 Tex. Ct. App., 156; 30 Am. R. Howland, (1871)42 Cal., 129 501 Stone, Rex t'., (1801) 1 East P. C. 639 102,494 Storrs t>. Barker, (18S2) 6 Johns. Ch., 170; 10 Am. Dec., 316 102 Stoudeimiire v. Harper (1887) 81 Ala., 2413 ; 1 South. Rep. 857 148 Stout v.Wren, 1 Hawks, 420 5 Strang v. People, (1871) 24 Mich., 1 242,247,552 Strickland r. Turner, L. R. 7 Exoh., 208 -jtj Sturtevant r. Sturtevant, (1886) 116 111., 340 ; 6 N. E. Rep., 428 54 3a jg TABLE OF CASES. PA OH Subhan, Qneen-Empress v., (1893)1. I. R., XVIII All., 395 225 Such, State r., (189) 53 N. J. Law, 351 ; 21 Atl. Kep., 852 51 Sukaroor. Empress, (18S7) I. L. ft., XIV Cal., 5 424 Sullivan v. India Mfg. Co., (18V3) 113 Mass., 393 170 Supervisors, People r., 27 Cal., 655 ... ... ... ... ... ... ... 102 Swamirao v. Collector of Dharwar, 0892) I. L. E., XVII Bom., 299 479 Sweenia, R. v. (1858) 8 Cox C. C., 223 32, 280, 307, 303.326,330, 830, 349, 350 Sweepster r. Gaines (1857) 19 Ark., 9(i 478 Sweetzer r. Bosliu and M. B, Co., (1876) 66 Me., 58* 4 Syud Mahomed v, Oomdali Khanum, (1870) XIII W. P., 181 524 Taintor, U. S. r., 11 Blatchf., 374 226 Talbntr. National Bank, (1880) 129 Mas*., 67; 37 Am. Rep., 302 115 Tapley r. Tapley, (1S<35) 10 Minn., 448 ; 88 Ain. Pec., 7G 38 Taylor v Atlantic and Pnc. B. Co, (1878; f 8 Mo., 897 435 Taylor v. Atlantic, &o., B. E. Co., 57 Barb., 45 508 Taylor v. Best, 14 C. B., 489 477 Tuy 'or v. Calhell, (1854) 16111., 93 50 Taylor*. Jacques, (1871) lOfi Mass., 291 51 Teebum Lall Da?8 v. Peter Me. Arthur, (1 864) I W. R.. 279 463 Templetonr. Giddings. (1889) 12 S. W. Rep., 851 ...' 479 Thomas v. Quartermaine, (1887) 18 Q. B. D., G85 166 Thompson, Hex r., (1787) 2 T. It, 18 494 Thompson v State, (l862i 18 Ind., 388 ; 81 Am. Deo., 384 ... ... - 177 Thornton r. Kempster, (1814) 5 Taunt., 783 ; 1 Marsh.. 355; 15 R. R., 058 ... 84 Thoroughgoods, (1577) 2 Co. Rep., 9 72 Thorpe v. Priesthall, (1897) 1 Q. B , 159 505 Thowing v. Lumber Co., 40 Minn., 184 86 Thrussel v Handyside, (1888) 20 Q B. D., 359 174 Thurborn, R. v., (1848) 1 Den. C. C., 387 2-Jl Tilman, State r., (1878) 30 La N . Ann. 1249 ; 31 Am. Rep., 236 310. Biy Tolund r. Corey, (189.) (i Utah, 394 ; 24 Pac. Kep.. 190 97 Tolliver, Com. v., (1976) 119 Mass., 312 520 Town of Ohio r. Marcy, 18 Wall.. 552 510 Town of Sharon '. Gager, (1878) 46 Conn., 189 51 Townsend r. Cowles, (1858) 31 Ala., 428 102 ''ownsend r. Crowdy, 8 C. B. N. *., 495 114 Township r. County Marion, (1887) 110 Ind., 579, 10 N. E. Rep., C91 4^1 Trainor r. Philadelphia, K. Co., (1890) 137 Pa. St., 148 16'J Tielawny r. Williams, 2 Vern., 484 ... 483 Trigg v. Read, (1845) 5 Humph., 529 ; 42 Am. Dec., 447 93 105 Trimbakji -. Tomu, (186 ) IL B. H. C. R., 192 ' 4l ;5 Trucman, Beg. v, (1839) 8 C. & P., 727 2o5 Trombly v. Richard, (1881) 130 Mass., 259 74 Troylnkho Nath, Empress v., (1878; I. L. B., IV Cal., b66 178, 231 Turner v. People, (Ib7i>) 33 Mich., 363 '244 Turner r Postmaster-General, (1864) 10 Cox C. C., 15; 5 B. & S., 75(1 ] 4^4 Turner r. Yates, (1853) Ifi How., 14 5>>0 Tyler v. Smith, (1858) 18 B. Mon., 798 " 117 Tyia v. Com., 2 Mete., 1 535 U UpH^grove . Penn. S. T. R. Co., (IS90) 132 Pa , 540 ; 19 Ail.R., 2p3 ; 7 L. R. A. ; 213 164 United States r. Withier, 5 Dil ., 35 ... ... ... ,.. ... ... 3(53 Upton r. Tribilcock, (L875) 1 Otto, 45 , '.'*. '", 9j Urry, Reg r., \\\ >t< 2 ll TABLE OF CASES. PAGE Vadnais, State r., (1875) 21 Minn., 382 54G Van Brunt r. Singley, (1877) 85 111., 281 74 Variier v. State, (18*4) 72 Ga., 745 183 Vaughan w. Scade, (1831) SO Mo., 600 530 Velayudarn v. Arunachala, (1 8f-9) I. L. R., XIII Mad.. 273 493 Verdegreen, People r., (1895) 106 Gal., 211 ; 46 Am. St. Rep., 35 315 Vester, State r., (1877) 29 La. Ann., 620 520 Viraragav r. Krishnasami, (1882) I. L. R., VI Mad., 341 474 Vishnu Sakhiiram r. Krishna Rao, (1886) I. L. R., XI Bom., 153 493 Vitrifield Co. v. Edwards, (1883) 135 Mass., 591 510 Vogel, Stater., (1868) 22 Wis., 471 517 Voinet v. Barrett, 55 L. J. Q. B., 39 172 W Wahid Ali, . Tnayet Ali, (1870) VLB. L. B., 52 ; 14 W. R,, 288 464 Waixel r. Harrison, (1805) 37 111. App., 3i3. 164 Wakefield Local Board of Health v. West Riding and Grinsly B. Co, (1865) L. R. 1 Q. B., 84 482 Walker r. Egbert, (1871) 29 Wis., 194; 9 Am. Rep., 548 73 Wailing . Beers, (1876) 120 Mass., 640 486 Walte r r . People, 11867) 50 Barb., 144 30, 275, 284 Wansley r . Robinson, (1876) 118 La. Ann., 793 462 Ward v . People, (1874) 30 Mich., 116 530 Ward, State v., (1887) 73 Iowa, 532 2iR Warden, State r., (1878) 46 Conn., 349 530 Warren State r., (1S93) 77 Md., 121; 39 Am. St. Rep., 41 203 Warwick, Stater.. (1886) 47 Ark,, 568; 25. W. Rep., 335.... 536 Wasson r. Cone. (1877) 86 111., 46 484 Waters, State r., (1876) 62 Mo., 190 09 Watkins r. Bai d, (1810) 6 Mass., 506; 4 Am. Dec., 170 50, 52 Webbr. Alexandria, (1880) 33 Gratt., 168 103 \jebb, Beg. r., (1848) 2 Car. & K., 933; 13 Jur., 42; 1 Den. C. C., 338 139 webster r. Cecil, 30 Beav., 62 240 weiskittle, S. r., (1883) 61 Md., 48 479 Jyentworth, State r., (1876) 65 Me., 234 ; 20 Am. Rep., 688 ' 519 westmore r. Paine, (1891) 1 Q. B., 483 504 West, State r., (1888) 39 Minn., 321 ; 40 N. W. Rep., 249; 8 Am. Cr. Rep.. 381 ... 317 wheaton r. Wheaton, (1810) 2 Conn., 9li 102 Wheeler r. Hatheway, (1885) 58 Mich., 77 ; 24 N. W. Rep. ; 78D HR Wheeler r. Smith, (1650) 9 How., 55 100 Whitoher v. State, (1891) 2 Wash., 283 353 White r. Heylman, (1859) 34 Pa. St., 142 46 White, State r., (1881) 33 La. Ann., 12)8; 35 Mo., 500 546 Whitney . Snyder, 2 Lans. (N. Y.), 477 74 Whittaker r. State, (1880) 50 Wis., 518; 36 Am. Rep., 856 ... 16, 140, 145, 193 Whitlier, United States r., (1878) 5 Dill., 35 ; 7 Cent, JL. J., 51 ; 111 Cr. D., 704 D35 Whittingham, Rex. r., (1801) Leach C. C., 913 185 Wightman r. People, 67 Barb., 44 522 524 WiTey r. Prince, 21 Tex., 641 38 Willey t'. Carpenter, (1892) 15 L. R. A., 853 6, 377, 409 Williams w. Bayley, I Eng. & Ir. App., 200 53 Williams V. Champion, (1833) 6 Ohio, 169 94 Williams r. Moor, (1813)11 M. & W., 256 136 Williams, R. v., (1838) 8 C. & P., 286 f.77 Williams, He?, r., (1813) 1 C. & K., 195 180, 23] Wil Jams r. State, (1 8V6) 12 Ohio, 622 524,531 Williams r. Stale (1875) 55 Ga., 391 ; 1 Am. Cr. Rep., 413... 181, 187, 188, 230, 234 Williams, State r,, (18V6) 75 N. C., 134 ...... ... 20 Williams r. State, (1881) 61 Wis., 28 .. 21 N. W. Rep., 56 522 Wilson v. Barker, (1S62) 50 Maine, 447 H6 20 TABLE OF CASES. PAG Wilson , Life Ins. Co., (1854) 6 Md., 157 97 Wilson r. State, (1869) 42 Miss., 639 524 Wilson t>. State, (1855) 1C Ark , C01 530 Wilson v. State, (1882) 12 Tex App., 481 544 Wilson v. State, (1876) 45 Tex., 76; 23 Am. Bep., 602 203 Winter v. Henn, (1831) 4 C. & P., 494 364 Withior, United States, 5 Dill., 35 368 Wolff r. Marshall, (1873) 52 Mo., 171 45 Wolfsteinv. People, (1875)6 Hun., 121 112,262,267 Wolaston.Beg. v., (1872) 12 Cox C. C., 183; 26 L. J., N. S., 403 13,16 Womack v., State, 7 Cold., 4 a 9 205 Wood v. Price, (1868) 46 111., 439 ... 102 Woodfordr. People, (1875) 62 N.Y., 117 ; 20 Am. Rep., 4G4 - *05 Woodhouse, Reg. r., 12 Cox C. C., 443 13 Woodhurst, Beg. v., (1870) 12 Cox C. C., 443 ; 1 Green C. P., 313 ... 138. 245 Woodleyv. Metropolitan Dist. By. Co., (1877) 2 Ex. D., 384 1(56,173 Woods v. People, (1874) 55 N. Y., 615; 14 Am. Bep., 309 649 Woods v. State, (1888) 26 Tex.App., 490 ; 10 S W. Bep. 1(8 227 Woodward v- Hanohett, (1881) 52 Wis., 982; 9 N. W. Eep., 4,68 475 Works, Appeal, (168) 59 Pa., 444 51 Wright v. Andrews, (1881) 130 Mass., 149 486 Wright v. Remington, (1879) 12 Vroom (N. J.), 48; 32 Am. Kep., 180 ... 38 Wright v. State, (1843) 4 Humph., 194 2ir>, 213, 245 Wroe v. Greer, (1852) 2 Swan., 172 478 Wjatt v. State, (1852) 2 Swan , 394 279, 281, 283, 286 Y Yarmouth w. France, (1887) 19 Q. B. D., 647 108, 174 Young, Reg. t?., (1878) 14 Cox C. C., 114 23 Young, Reg. v., (1838) 8 C & P., 644 403 Young v. Ross, (1855) 31 N. H., 205 484 ADDENDA AXD CORRIGENDA. Page Line For Substitute 7 29 111 II. 21 84 ruoluta di deques risoluta di acquis 41 obliging another towards obligating another to 24 14 couse course. 25 21 uhiform uniform. rap rape. 36 8 raisonable et quelle raixonnabls, et quelle 38 23 kokoureck. kocoureJc. 45 35 must. must. Foot-ref. 55 Mt. Mete. 50 23 E-en. Even. Poot-ref. 75 Dunhaver. Dunhaven. Do. 76 150 50 51 Do. 85 Hulhorst v. Scharner. Hullhorst v. Tscharner, 66 29 ign- igno- 63 32 partes. parties. Foot-ref. 15 15 16 Do. 16 16 17 Do. 17 17 Paget Paget 69 Do. 20 Loins Louis 70 Do. 23 110 1110 71 17 serTelarung erkldrung 74 Foot-ref. 37 Co. County 75 Do. 44 Frand Fraud 76 32 a generally generally 82 11 circusmtances circumstances 88 4 sasy says 31 beng being 90 39 psychlogically psychologically 91 2 goverment government 38 effect as a same same effect as a 93 36 rescision rescission 95 17 nvolvea inyolvea 98 6 thre the 102 Foot-ref. 37 Jeffries Jefferiea Osborn Osburn Olen Clem 4 8. 488. 104 8 admixture admixture 11 ADDENDA AND CORRIGENDA. Page Line For Substitute 116 Foot-ref. 34 Kingston v. Bank Kingston Bank v. Eltinge 126 6 transferrred. transferred. 31 Gibson. Gibson, J. 143 35 manfestation. manifestation. 152 37 Conners. Connors. 156 30 a great. as great. 164 Foot-ref. 34 V. & C. M. & Y. 169 Do. 46 Past., Pa. 176 24 w Ulight ivilligt 182 19 cos cose 23 stremi estremi 191 14 not nor 194 17 a an act an act 197 15 consenteed consented 198 16 infects infect 17 vra was 200 20 in is 203 7 a contrary the contrary 205 Foot-ref. 41 v. State Clem v. State 214 24 Einwilligunq Einwilligung 215 4 acquiescence acquiescence in 220 14 Wider. Wider 222 36 inasmu h inasmuch 228 16 Wevrzettye Werbzeuge Foot-ref. 2 Auschicks Anschicks 231 36 Bohlou Bohlau 38 der des 232 33 gekommehn gekommen 34 (*> (0 233 20 ( ) (r) 236 29 Rechts, ipidriglteU. Rechlswidriijke it. 277 Foot-ref. 50 C. B. Q. B. 278 13 derson person 288 Foot-ref. 3 146 P. 1 Whart. Cr. L., 295 15 fraud fraude 34 e nale Penal e 319 13 zichen ziehen 340 15 deg des 347 42 possession as a legal interest. possessor as protected by law, 356 20 of or Foot-ref. 20 Porat Prat 357 18 Vorausetzung Forauasetzunff 359 30 (war) w*r 361 30 on sent consent ADDENDA AND CORRIGENDA. in Page Line For 362 33 he 303 8 16 sopendo executed 29 their 378 26 av c 387 36 mechanica 391 16 Alison 393 26 head 395 33 moms 397 401 26 11 consent, Totung 409 Foot-ref. 49 L. A., 27 same 29 sonly 413 17 Tortung 51 P art 417 mar. heading contrasted 418 26 ie din Einwilliffedner 435 2 Handeln den 436 10 piurrait 36 complai- 439 Foot-ref. 12, 13 Commissioner's 440 14 codsidered 450 22 ground that if it, 457 27 Ferlangen 464 Foot-ref. 25 Manu'fing 475 27 Ganjee 478 Foot-ref. 39 Ld. 486 After Foot-ref. 28 495 9 a magistrate 500 17 Collector 504 Foot-ref. 86 86 512 15 a 527 Foot-ref. 21 Cor. 529 Do. 27 4 9 530 Do. \Viss. 533 32 th s 41 cana Substitute the person abducting sapendo committed her avec mechanical Allison accord moins consenti Tod tun ff L. R. A., same lj only Tddlung Part contrasted in die Einwilligender Handelnden pour rait complais- Commissioners' considered ground, that if it t Verlangen Manuf ing Gamgee 2 Ld. 28 I. L. R., H. Mad., 407. the magistrate conciliator 36 the Cr. 479 Wis. this can A CHAPTER f. OPERATION OF CONSENT IN CRIMINAL LAW. Volenti non fit injuria. This principle of Roman jurisprudence is of a very general application, and recognized in General operation e system of law. The Roman Jurists of consent. * . '. knew it in several aspects, and acted upon it in several ways. The Roman Law had several maxims virtually to that same effect (.4). Ulpian laid down broadly Nulla injuria est, qua in volentem fiat. Indeed, what more natural than to presume that there is in fact no evil, or that if there is any, it is perfectly compensated, when there is a consent. Bentham, approving of the rule embodied in the maxim, observes that it is founded upon two very simple propositions ; one, that every person is the best judge of his own interest ; the other, that no man will consent to what he thinks hurtful to himself. As reverse of fraud, consent appears to make right every- thing that would otherwise be a wrong. It is even said con- sensus facit leyem, and consensus tollit errorem. Brain well, B., in his opinion in Reg. v. Middelton 1 , observed : " It is a good rule not to make that a crime which is the act or partly the act of the party complaining : Volenti non jit injuria: As far as he is willing let it be no crime." Dr. Bishop, in his work on Criminal Procedure 3 , after observing that " in natural reason, one should not complain of a thing done with his consent," says that " the law, in all its departments, follows this principle." 2. Consent is the very basis of contract as a legal con- ception. It is only an agreement of two or Operation , I con- more persong to do or not to do something, sent on contracts. ,, i * ,1 that can form a contract; and from the nature of an agreement its most essential constituent is the consent of the parties. There can be no agreement, unless (A) Sciente et consentlente non fit iniuria. Nemo videtvr fraudare eos. qu\ tciunt et conxentunt. Si quis rolentem retineat, non videtur dolo malo retinere Lege Fabia catetur, ut liber, qui hominem ingenuum, vel libertinum intitum celazerit ; . . . eint poena teneatur. i 2 C. C. Res., 54. | I, 70 1 OPERATION OF CONSENT ON CONTRACTS. [S.2. there is a meeting of at least two minds in one and the same intention, and different minds can be held to meet only when there is consent on the part of them all. An agreement may in fact be said to be merely another name for a proposal as- sented to by the person to whom it is made. Without con- sent there may be the shadow, but not the substance of the contract 3 . Consent can also generally, without anything else, undo a contract, dissolving the obligation created, and discharging the liability imposed, by it. As it is the agreement of the parties which binds them, so may their agreement loosen the contractual tie. In British India, it is expressly enacted that if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed 4 . Under the English Common Law, a bill of exchange or promissory note could always be discharged by the holder's consent 5 . Even now a delivery of it to the acceptor, or a waiver in writing, will be deemed a discharge 6 . In the United States, the instrument has to be destroyed and surrendered for the purpose of discharging the debt 7 . In case of other contracts, they may be discharged by consent only when it amounts to a contract, and is therefore expressed under seal or accompanied by consideration. Mutual forbearance or discharge of obliga- tions is, however, a sufficient consideration. It is sometimes said that a simple contract may, before breach, be waived or discharged without a deed and without considera- tion. It is thus observed m Sullen and Leake's Pleadings* , that "It is competent to the parties to a contract, at any time before breach of it, by a new contract to add to, subtract from, or vary the terms of it, or altogether to waive and rescind it 9 . The substituted contract forms a good defence to an action on those terms of the previous contract which have been altered by it, and may be so pleaded without any performance or satisfaction, which is required to constitute a good defence after breach 10 ". This is correct, however, only when the original contract is executory, as, in such a case, the discharge of each party by the other from his liabilities under the contract is a sufficient consideration for the promise of the other to forego his rights. If a contract has been performed on one side, an agreement that it shall no longer be binding, without more, is void for want 8 Spaids v. Barrett, 57 111. 289. S. 62, Act IX of 1872. Foster v. Dawber, 6 Exch., 839. 45 & 40 Vic., C. 61, s. 62. ' Jaffray r. Davis, 124 N. Y., 164 ; State r. Muttrie, 156 Mass., 19. s II., 298. 9 Goss v. Lord Nugent, 5 B. & Ad., 58. Taylor r. Hilary, 1 C.M. & R., 741. S. 3.] OPERATION OF CONSENT ON TORTS. of consideration. 11 Both the rule and thin exception were laid down in Fosttr v. Dawber, in which Parke, B., said : "It is competent for both parties to an executory contract, by mutual agreement, without any satisfaction, to discharge the obligation of that contract. But an executed contract cannot be discharged except by release under seal, or by performance of the obliga- tion, as by payment, where the obligation is to be performed by payment.*' These restrictions are all based on the ground that the consent to Revoke previous consent should, like the previous consent, be of a formal character. The rule of the Indian law quoted abcive has, as only a '* legislative expression of the common law," been construed as restricted td the cases contemplated by Sullen and Leake 18 ; and to (i agreements Which more or less affect the rights Of both i i parties discharged by such agreements, as they necessarily imply " consideration^ which is either the mutual renunciation of right or coupled with it the mutual undertaking of* fre'sh obligations, or the renunciation oi'sonie right on the one side and the undertaking of some obligation on the other.*' 13 In regard to all other cases, s. 63 of the Indian Contract Act provides in direct antagonism to the law of England, 13 * that 'every promisee may dispense with Or remit, \vholly or in part, the performance of the' promise ihaae to him, or may accept instead of it any satisfaction which lie thinks fit." 3* OT is the operation of cofisent restricted to contracts, leave and license being quite as ordinary a ; Spoor r. Spooner 12 Mete.. 281. 18 Bor.ns r. Steffeus, 62 Hmi., 6P ; Schorn /. Beiry, 63 Hnn., 110; Cook v. Wood, 30 Ga.. ^91; San- born c. Nelson, 4 N. H., 501. 90 Howlnnd r. Manufacturing Co., 153 Maes, ,543. 2 1 Mathow ?. Ollerton, Comb. 213. " JJull. N. P., 16. S. 3.] OPERATION OP CONSENT ON TORTS. 5 boxing was unhvful, and the consent of a party to it could not excuse the injury caused by the boxing. In Stout v. Wreu r ^ it was held, ''that a man shall not recover recom- pense for an injury received by his own consent, provided the act from which he received the injury be lawful : but when two fight by consent, and one is beaten, he may recuver damages for the injury, because the fighting is illegal." In Bell v. HaHsley*^ the Court held, " that one may recover in an action for an assault and battery, although he agreed to light, for such agreement to break the peace being void the maxim. \'olonti nan pt injnna does not apply." The same was held in Loy<\n v. Austin-*' and in Dole v. ftr&kine? * In Shay v. Thompson the jury were instructed that, if the parties " by common consent, in anger, fought together, and that the plaintiff was actually injured in said fight by ihe defendant, the plaintiff is entitled to recover from the defendant the actual damages resulting from said injury" ; and the Supreme Court held that the instruction was fully sustained by authorities. In Adam* v. Waggoner*** it was held, on a review of authorities, that it was no bar to an action for assault that the parties fought each other by mutual consent. In BarJiolt v. TIV/03. 21 59 Wis., 540. 22 c 1 Stew. ; 170. j 2- 33 Ind, 53'. 2 *u 43 Ohio, 177. (5 OPERATION OF CONSENT OS IORIS. [S. 3. committed upon him, and the assailant for the excess of force used beyond what was necessary for self-defence. 246 " In \Ville\i v. Carpenter* the Supreme Court of Vermont held that a license to a parson to commit assault is no defence to an action for damages for the assault, and said that " the rule that consent will not justify an assault and battery is good law, and conclusive to a sound public policy/' Jft McCue v. Klein** Willie, C. J<, in delivering the opinion of the court, said tlvifc the rule of la\V was clear that consent to an assault was no justification. Cooley, in his work on Torts/ 5 gays that " the rule of law is clear aud unquestionable, that consent to an ass uilt is no justification/' It is said in Jag- gard on Torts,*' that consent does not justify assault. It has even been held that a person may maintain his civil suit for a battery, to Which he consented and in which he parti- cipated, Di 4 . Bishop, referring to %f decision's like these, proceeding on a misapprehension, and overlooking established law/' says that they should not be followed in future cases. They are clearly wrong, as the groilnd on which they proceed is untenable. That ground pre-supposes that, in such Cases, tho law has forbidden the consent, 2 * while consent is never for- bidden in them ; but at the best, only the act constituting the tort is forbidden, and the ground, to have any sense, should be stated to be that consent to an act forbidden by law is inoperative, and can have no effect iri excusing the act/ 9 Thus in Miller v< Bayer.** Marshall, J., in delivering the opinion 'of the Supreme Court of Wisconsin observed, that " consent by one person to allow another to perform art un- lawful act upon such person does not constitute a defence to an action to recover 1 the actual damages which such person thereby received." In Willey v. Carpenter. the Supreme Court of Vermont observed that all such decisions proceeded " on the principle/ that the act assented to 1 being unlawful at common law, the consent of the plaintiff is no bar ta his action." If this were trite, however, consent \vould never have any effect, as, of course, there would be no use of it in regard to an act *b Dole '. Erskine, 35 N. H., 50'3. Darling r. Willinins, 35 Ohio, 60. Oi/.ler f. Witzel. 82 I1L. 1}'J2, at c 1")L, R. A. 8o3. r,o T.-X ,K;S. P. 188, ** t. 203 3S Cooley on forts, 187. 2 Shay r. Thomson, 59 Wia., 540. 3!> :i (8 y. W. Hop., 8U9. ai 'b 15 L. K. A.. 853. f. 4.] OPERATION OF COSSKST ON TORTS. a which was, already and without it, lawful. It might as well be contended that the consent of a person could not transfer his rights or property to another, as such transfer would be in itself, and apart from consent, a wrongful act. This would, however, destroy the very basis of the law of contracts, and therefore shows the absurdity of the groun4 even as it might be urged. To minimize the absurdity, a further distinction is made. It */ is said, that '' the law does not recognize consent to conduct un? lawful, or forbidden by positive law, or for doing that to which a penalty is attached ; but \yhere the wrong complained of is not forbidden by law, though it may be by morals, such as the seduction or debauch of a man's wife or daughter, slander, libel or trespass on his real estate or to his personal pro- perty, agreempnt, consent or license, is a good defence." 30 Thus in Adams v. Waggoner 9 ' Pettit, C. J., in delivering the opinion of the Court, said : " We think the deduction and conclusion to which we havs come are fully warranted by the law and by the reason thereof, which is, that an agreement, leave, or license to do an act which in itself is unlawful, forbidden by positive law, and for the doing of which a penalty is attached and denounced, whether a felony or a misdemeanor, is no defence to an action for damages by a party \\ho has been injured by the doing of such act, though he made the agreement, gave the license, leave and consent ; but when the wrong complained of is not forbidden by law, though it may be by morals, such as the seduction or debauch- ing a n^an's wife or daughter, slander, libel, or trespass on his real estate or to his personal property, agreement, consent or license, is a gooc] defence." Mr. Jaggard himself, however, does not consider this distinc- tion tenable, observing tha.t " seduction is as much forbidden by positive law as is assault." He suggests, what is no doubt true, that ''the true distinction is that a man cannot consent to do anything which is a breach of public duty." And the contrary principle that a person consenting to an injury cannot profit by that injury and recover in an action o Jagg. Torts, 203 J so a 33 Ind., 631. 6 k INJUEY TO PERSON CANNOT DE lOiri'. [S. 4. for it lias recently been recognized, in a most general form, by the Court of Appeals of Kentucky in Goldnamer v. O'Brien,* 1 in which it has been held that a woman consenting to abortion cannot sue for it; the court not being "able to understand how, in a civil suit, in which the party consent- ing alone is interested, compensation can be allowed by the law." The principle is not settled, however, and the Supreme Court of Wisconsin has, however, still more recently held that the consent of a woman to the performance of an abortion upon her is not a defence to an action for actual damages thereby sustained by her. 31 * 4. It has been said that " consent alone is not enough to justify what is on the face of it bodily Injury to person, if \ iarm " tnafc '< w i|f u l } iurfc is not CXCUSed consented, to, cannot be , , . c . , tort by consent or assent it it has no reason- able object." 3 This is sometimes at- tempted to be justified on the ground of the inalienability of a person's right to the safety and preservation of his body, but consent does not involve the question of the alienation of any rights. The doctrine of inalienability has been maintained by some eminent jurists. Bat there do not appear to be any sufficient grounds for belief in the existence of any such in- alienability, for believing- that a person can allege and recover for an injury to any ri;ht of his, notwithstanding that the act causing the injury was done at his desire and request, or with his approval and permission. Besides, under every system of law, a person is competent to inflict any injury on himself and his body he may like. And it is a general principle that a person can consent to any act which he can do himself without offending the law. Pollock himself, in his draft of the Indian Civil Wrongs Act, 33 proposed to enact, in general language, that a person is not wronged who suffers accidental harm or loss, through a risk naturally incident to the doing by any other person, of a thing to the doing of which the first-mentioned person has con- 33 S W. Rep.., 831. I sa p n. Torts, 144 (2nd Ed.) a Miller r. Bayer, 68 N. W. Ren., 3" S. 25. 869. S- 5.] CONSENT DOES NOT AFFECT PUBLIC INJUEIES. 7 sented, or any harm or loss in consequence of any act done in good faith and with his free consent. To what extent consent may completely justify or excuse bodily harm or wilful hurt will be explained later on ; but there appears to be no sufficient authority against the pro- position that the person, to whom such harm or hurt is caused, is not able to recover in an action for that harm or hurt if he had consented to suffer the same. 5. Consent is thus a complete defence to a tort. But an act Consent of an in- causing harm to a person is a tort only in dividual does not regard to that harm, A consent to one act, affect acts prejudicial or to suffer one harm or sort of harm from one person will not affect the tortious char- acter of any other act, or of any other harm, or sort of harm from any other person, nor as against any person except him who gave the consent. Consent will thus not take away the wrong- ful character of any act so far as it may be wrongful inde- pendently of the harm to the person who gave his consent to that act. M. Garraud, in his work on the Theory and Practice of French Penal Law, says: 34 La faculte de comffntir nne renonciation valable a un droit personnel trouve, en effet, une double limit e et dans le droit d'autrui et dans Vintlret public. Ill n'est pas possible de renoneer a un droit lorsque, par cette renonciation, le droit d* autrui se trouve Use ; ainsi, le pbre ne peut renoneer a Vun des attribute de sa puissance paternelle, par exemple au droit defaire elever sonfils de telle maniere et dans telle religion, parce que, au droit personnel, correspond alors un devoir vis-a-vis d'autrui, et la renonciation a ce droit serait, en meme temps, la violation du devoir. Ill n'est pas non plus permis de renoneer a des droits au maintien desquels Vordre public est interesse : " jus publicum privatorum volontate mutari nequit. " De ces considerations, ilfaut done conclure qu'un individu ne peut pas accorder a un autre individu le droit de violer, en sa personne, les lot's qui inter essent, soit d'autres individus soil I' or dre public et les bonnes mceurs. In one sense, indeed, there is no act which causes harm only to one person. So intermingled are the affairs of men, that a person can seldom suffer harm without involving some harm to a number of other persons. Almost every injury to one's person or property may affect his means of providing for the maintenance of his relations, of payment to his credi- 34 I. 395. 8 CONSENT DOES NOT AFFECT PUBLIC INJURIES. [S. 5 . tors, of affording relief to the poor and distressed, and even of discharging his liability as a tax-payer to the State. These means, however, are interests of too remote a character to be recoginzed by law, and the harm resulting from a diminution of them is considered too remote to affect the legal character of the act itself. These interests of the relations and the creditors of an individual, of the poor and distressed, and of the State are, at best, what are known in German Law as neben interessen. (rt) If law cared for these interests, it would protect them even against the indi- vidual himself. In case of property, wenigstens die muthwillige mrgeudende Sachbeschadiyung zu ihren Gunsten verboten haben. (b) Yet, in most systems of law, mischief consists in tbe causing of harm to another person's property. In British India, the causing of harm to one's own property may also constitute that offence, but only when it is intended or known to be likely to cause " wrongful loss or damage to the public or to any person," that is, to any other person. And ca using harm to one's own person is not an offence anywhere, not even when the harm amounts to a loss of limb or the severest bodily injury, except when it is caused for some ulterior purpose directly prejudicial to the State. Nor is further cognizance of these subsidiary interests of others essential, as, in most cases, the notion of self-interest and self-advantage will be strong enough to prevent acts that are likely to cause harm to them. A tort may, however, sometimes cause even such harm to the society as the law takes cognizance of, and, viewed as a cause of that harm, it will be treated not as a tort, but as a crime, though as distinguished from a crime essentially against society, it may be designated a private crime. Harm to the society being the essence of all crimes, it is the consent of the society alone that can excuse them or affect their criminal character. The legislature, as representing the will of the society in the interests of the society, often declares criminal acts free from their criminality. It is on this ground that the general and in fact even special exceptions in regard to the criminal liability of acts are based. These exceptions, in most countries, declare that the consent of the person directly injured will excuse the commission of certain crimes, which mainly affect only that person. To the general exceptions, thus con- tained in the Indian Penal Code, reference will be made later (a) Subsidiary interests. (ft) At least the wanton wasting injury to property would be forbidden for their advantage. g. 6.] OPERATION OF CONSENT IN CRIMINAL LAW. 9 on, but, apart from them, it is clear that no individual can, by consenting to any criminal act causing harm to the society, alter the criminal character of that act. Any injury committed in such a way as to be an offence against the body politic can be prosecuted in defiance of the consent of the party immediately injured 36 . Dr. Wharton speaks of it as the better opinion, that " so far as concerns the State, no private individual can, by consenting that a crime shall be com- mitted on him, estop the State from prosecuting." This principle is recognized in every system of jurisprudence. Among the Romans it found expression in several maxims. Jus publicum privatorum pactis mutari non potest. Priva- torum conventio iuri publico non derogat. Pacta, quce contra leges constitute 'onssque, vel contra bonas mores fiunt, nullam vim habere, indubitati iuris est. Liber homo suo nomine utilem Aquelliae habet actionem : directam enim no habet, quoniam do- minus membrorum suoruin nemo videtur. The Mahomedan Law not having had at its first conception a distinct notion of the body politic, and being essentially an exclusive religious system, grouped all rights of the society with those which men owe to the deity, under the head of rights of God (Huquq Allah) as contrasted with the rights of individuals (Huqttq-ul-IbcuT). And offences against the rights of God are punishable altogether apart from the consent of the person directly affected by them, which takes away the tortious character only of offences against the rights of indivi- duals. 6. Consent would thus appear to have no field for its right- ing operation in the criminal law, except ! C aw. direct legislation. This ia indeed the case even in regard to private crimes, where the harm is such or so considerable as to actually affect the ap- preciable interests of the society, as, for instance, if the harm consists in the loss of a person's life or limb. The consent of the person to whom such harm is caused cannot naturally affect the criminal character of the act causing that harm, Generally, however, the harm to the society is only an indirect result of the harm to the individual, and can have no existence without it ; and a harm consented to by an individual is no harm, as explained above, to that individual. In some cases the harm so Whart. Cr. L., 160. }0 OPEKATION OF CONSENT IN CRIMINAL LAW. [S. 7 to the society consists merely of the general alarm to the public resulting from the harm caused to the individual, and there can be no alarm from an act done to a person with his own consent. On these grounds, consent has, as a fact, considerable opera- tion in criminal law, and often negatives the existence of a crime. Among Germans, it is an ordinary maxim that die Einwilligung des Verletzten schliesst die Strafbarkeit der Hand- lung aus (o) . In the. English Law, as observed by Dr. Wharton 38 , consent by an owner to the taking of goods is a defence to a prosecution for larceny ; consent to the entrance into a house is a defence to a prosecution for burglary ; consent to an assault, not connected with a breach of public order, is a defence to a prosecution for assault ; consent to an intended rape bars a prosecution for rape ; consent to an intended robbery bars a prosecution for robbery. The same principle was recognized even among the Romans. Sed et si credat aliquis invito domino se rem commodatam contrectare, domino autem volente id fiat dicitur furtum non fieri. Vi factum videri Quintus Mucius scripsit, siquis contra, quam prohiberetur, fecerit. 7. The effect of consent in criminal law is thus quite dis- tinct from that in the law of contracts. The exact charac- There its effect is positive, and it leads ter of this operation -,. ,-, ,-, ,. J ,. ,. of consent. directly to the creation, transfer, or extinction of rights. In the criminal law, its effect is a purely negative one, and it does not affect any rights. Die Einwilligung besteht nichtin der Constituirung eines Rechts fur den Anderen zur Vornahme der fraglichen Handlunf (d) . Das Wesen der Einwilligung besteht nicht in der Uebertragung des in Frage kommsnden Rechts des Einwilligenden auf den Anderen 38(e) . Die Einwilligung ist kerne Dereliction des fraglichen Rechts (f) . Die Einwilligung ist Tcein Verzicht auf ein Recht* ^. Consent is at the most a relinquishment of one's interest in the doing of an act. Thus Kessler says : " Wenn ich mit beu-usstem (c) The consent of the injured person excludes the penality of the act. (d) The consent does not consist in the constitution for another of a right to the undertaking of the act in question. (e) The existence of consent does not consist in the transfer of the right in question of the oonsenting person to another. (/) The consent is no dereliction of the right in question. (g) The consent is no renunciation of a right. as I Whar. Cr. L., 159. 3? Kess. Einw., 20. 40 Eess. Einw., 92. 38 Kess. Einw., 19. 8 9 Kess. Einw., 21. S. 7.] CON SENT _1X)E3 NOT AUTHORIZE DOING OF AN ACT. H \Villen eine dsm Gute gefiihrliche Handlung gestatte, so beiceist dies dass es insoicett fteln Gat mehr filr mich ist oder, icas dussetbe sagt, dass ick kern Jnteresse mehr daran habe, dass diese Handlung unterbleibe. tiw It does not lead to any direct " rechtliche Folgen, na- mentlich keine Verdnderung in den beste.hendan U?chtsverhdlt- nissen, aber sle schlesst, wenn dip, Ilandlung, auf welche sie gerichtet icar, geschehen ist, das Kinschreiten der stafitlichen Strafgeicalt aits, welches ohne sie den Ha'idefiiden getroffen ha!>en tciirde. * 2 (0 Durch die Einwittiquny ist die Hundlung nicht zu einer berechtigten, sondcrn nur zii einer rechtlich indif- ferenten geworden. * 3(i> Consent does not even authorize or empower the doing of an act. In this it differs from the Volfmacht of the German Law, which is the basis of the entire law of agency, and to which it is so far similar that wie die Vollmacht dem Bevollmachtiflten die Moglichkeit giebt, eticas mit dvilrechtlichen Fulgen zu thun, wasolmedem nur der Vollmachtgeber seJbst mit diesen. FoJgen thun konnte; so giebt die EinwilHtju.ng, snweit sie ilberhaupt eticax wirht, -dem Empfdnqer die Moglichkeit^ eticas ohne sf.raf- rechtliche Folgen zu thun, was sons/, nur der Einwiltiycnde ohne diese Folgen thun konnte,** (k) In distinguishing the two, Kessler says 45 : Wdhrend die Vollmacht dazu bettimmt ist, der rer.htsgeschaftlidien Handluny tines Anderen die voile rschtliche Erhebli<-li,keit zu verleihen ; ist es der Zweck der Einwilligung, der rechtsicidrigen Handlung ihre Beziehuny zum Rechte zu nehmen, sie also zur rethtlich unerheblichen zu machen, Die Vollmacht bswsgt sich mitten (h) When I with a conscious will permit an aot dangerous to a good (f . e., to an object of any interest of mine), so does it Bhow that it is, so far, no more good for me, or which is the same, that I have no more an interest in that act remaining undone. (?) Legal consequences, namely, no change in the existing legal relations, but it excludes, when the act to which it had reference, has happened, the interference of the penal power of the State, which without it would have befallen the person doing the act. (j) On account of consent an act does not become a right one, but only one legally indifferent. (fc) As the full authority gives to the person empowered the possibility (power) of doiag perchance with civil rights, what without it on'y the person giving the authority could himself do with those consequences, so the consent gives as far as it is at a' I operative the receiver (of the consent) the possibility (power) of doing perchance without penal consequences, what otherwise ouly the person consenting could do without those consequences. 41 Kess. Einw., 51. 4a Kess. Eiuw., 101. . Einw., 110. * 3 Kess. Eiuw., 2fi. ** Kcss. Eiiiw., 2(5, ]2 ABSENCE OF CONSENT, ESSENCE OF MOST I'ELVATE CRIMES'. f3 . im Tteclifsss3 unmreinbar sein. Die EinwiUigung dient nichl einem solchen lnteres.se der Erleichterung des Rechteverkehrs (I) . 8. The absence of consent is, however, the very gist of most private crimes. On comprend, en ejf'et, que Absence of consent cerfai - }ies infractions supposcnt, pour foe the essence of mo it , ,, i r , / private crimes. puinsficibles, que le jctit a eu lien contre La rolonte de la psrsonns qui en est victim? ; qu*il n'y ait pas vffl, par exempUj si le proprictalre de Cob-jet fiottstrait a consenti a son enlh'emmt ; quil n'y ait pas viol on attentat violent a la pudeiir, si la vie time ne s'est p roinal acts. suiter that harm, is olten a ground for entire non-liability in respect of the act causing that harm a justification for the causing of that 5 * State r. South, 4 Dutch.. 28. Arch. ,377. 5 S. 402. " I. P. C.,s. 360. 9S I. P. C.,s. 3(51. 59 I. P. C., s. 375. 00 I. P. C., s. 378. 61 I. P. C., s. 497. S. 10.] CONSENT AN EXCUSE FOR CRIMINAL ACTS. ^5 harm. In such cases the act causing that harm is not treated as criminal ; and consent forms & fait justificatif, or at least, a cause de non-culpalilite , and in the language of the Indian Penal Code, a general exception, providing a complete immunity for the act from the sanction provided for acts of that class by the law of crimes. The most usual cases of general exemption from criminal liability on the ground of consent are provided for in ss. 87-89 and 92 of the Indian Penal Code. Even when it does not operate as a general exemption, it may be a ground tor partial non-liability, corresponding to the French excuse. In such a case, it only diminishes the criminal- ity of the act, and renders it liable to a punishment less than that fixed by law for acts of that class. This may be taken to be the case in regard to every offence, which, when committed Avith the consent of the person affected, does not require to be punished with the same severity as if it were committed against his will. Several instances of this statutory partial diminution of criminality are expressly enacted in the Indian Penal Code. Thus the fifth exception of s. 300 provides that " culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent." Similarly, sometimes an act is an offence irrespective of the consent of the person affected by that act, and in such cases the act is deemed to be a higher offence liable to greater punishment, when it is committed without the consent of that person. Thus an act causing the death of a woman, and intended only to cause her miscarriage is rendered by s. 314 of the Code a much graver offence when done without her consent. In most cases, however, the offence as mitigated by the consent of the injured person, has not got a special designation, and is thus not expressly recognized by positive law. Consent, in such a case, operates only as a circonstance attenuante, but its mitigating effect is not less real on that account, and cannot be ignored in the administration of criminal justice. 16 CONSENT AN OPERATION OF MIND. [S. 11. CHAPTER II. NATURE OF CONSENT. 11. In a general sense, consent is the quo animo of the Consent is an ope- act ; to consent is an operation of the mind ration of mind. implying positive mental action; and "con- senting is to be willing, as a condition of the mind" 1 . This has been laid down repeatedly by jurists and judges. In Reg. v. Middleton *, Brett, J., observed that " consent or non-consent is an action of the mind ; it consists exclusively of the inten- tion of the mind." Consent has been defined as the concur- rence of wills 3 , as the voluntas multorum or plurium ad quos res pertinet. To consent, c'est vouloir ce qiCun autre veut et nous propose de vouloir egalement ; and consentment, it has been said, consists in the conformity d'une volonte avec une autre volonte. In the German law, the corresponding expression Einwil- liqung has in its general sense, been defined by Kessler in his work on that subject 4 as die Erkldrung der Ueberein stimmung meines Willens mit dem Willens-acte eines Anderen (a \ and for the special purpose of the Criminal Law as die erkliirte Ueberein-stimmuug des Willens einer Person mit der t abgesehen von dieser Erkldrung, zum Schutze eines Interesses des Erkldrenden bei Strafe verbotenen Handlung eines Ander- en 5W . It must be kept distinct as much from mere absence of dis- sent as from a wish or instigation. The absence of dissent or even mere submission is not consent. Submission, far from being consent, is totally different from it, for there may be submission without consent, and even while the feelings are repugnant to the act done and submitted to . As observed in Reg. v. Day 7 , " every consent involves a submission, but it by no means follows that a submission involves consent/' (a) The declaration of the agreement of my will with the voluntary act of another. (6) The declared agreement of the will of one person, with the act of another which, apart from that declaration, is prohibited under pain of punishment, for the protection of an interest of the person making the declaration. i Whittaker r. State, 50 Wis., 518. 8 2 C. C. Res., 62. Black's Diet. * P. 26. 5 P. 99. Reg. . Wollaston, 12 Cox. C. C., 180; Ridout r. State, 6 Tex. Ct. Ap., 249. i 9 C. & P., 722. S. 12.] NATURE OF PHYSICAL CONSENT. 17 So at the importunity of another person one may often con- sent to an act which he really dislikes, and even does his best to thwart or prevent. To take the case of a surgical operation for extracting stone which is for a man's benefit, a nervous patient will often, on the first smart of the surgeon's knife, like to escape it altogether, even at the risk of death, and would escape but for the chloroform administered to him, and still he is said to consent to the operation. As to the instigation, Kessler says 8 : Die Einwilligung 1st Tceine Anstiftung des Anderen zu der schiidigenden Handlung (c) . 12. Reference is made in some cases to physical consent, as distinguished from consent. Really, of course, the consent of the intellect is the only consent known const" * to the law. 9 _ AsLawson, J., observed in his judgment in Reg. v. Dee 9 , " there can be no such thing as material consent, in the case of a rational being, it must be mental consent or nothing." No practical harm can, however, result from this use of the term, so long as its exact sig- nification is understood. What is really contemplated in such cases is the physical expression of consent, because like every other state of mind, it can be expressed only physically. The term physical consent is, however, not used always to indicate this physical mode of the expression of consent, but often the absence of those legal qualifications of consent, without which it is generally deemed to have no legal operation or effect, and without which it is sometimes said not to exist at all, at least for the purpose of the law with reference to which its existence may at the time be in question. It is often even maintained that a consent, which is not operative in any branch of the law, is, so far as that branch is concerned, no consent at all ; and acting on this principle, consent is in some branches of law defined so as to include all those incidents of it, without which it will not have operation in that branch, as if they were its very essentials. Thus, in Story's Equity Jurisprudence, consent is defined as " an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side ". 10 The proposition can, however, be correct only as an elliptical expression, and may cause no harm so long as its (c) The consent is no instigation of another to the act oausiug the injury. Kess. Eiuw. ; 23. 10 S. 222. 9 Eetr. v. Dee, 15 Cox C. C.. 594. per Pallcs. C.C. 3 18 CONSENT DISTINCT FROM ESTOPPEL. [S. 13. elliptical character is borne in mind. It lias practically, how- ever, led to considerable difficulties by encouraging a confusion between the absolute essentials of consent, and .such qualifica- tions thereof as are of importance only for particular branches of law. Besides, merely to say, in any case, that a consent is no consent at all, tends to avoid or throw into back-ground, in all cases of that sort, the real question of the adequacy of every alleged vitiating cause of consent, to divert attention and contro- versy from the question of any circumstance being or not being sufficient to render consent inoperative in any case. Negative the existence in any case of consent, and, so far as consent is concerned, there will be no distinction in that case, between circumstances which are the essential constituents of consent, and those the absence of which only prevents consent from re ceiving a certain effect which law assigns only to a consent in acertain branch of law or with certain qualifications. 13. Consent is sometimes spoken of as apparent. This is generally the case, when its declaration Consent not to be c j oes not constitute real concurrence of wills. confused with estop- mi , . , ,* . -. I The practical effect in such a case, however, is the same, as if there were real consent. In contracts, for example, the law often deems that there is an agreement when really there is none. A party consenting to an act proposed to be done by another is entitled to under- stand what is ordinarily conveyed by the mention of that act among that class of people and in similar circumstances, even if that other person should have meant something else by that act, so long as he did not indicate that he meant something else. It is thus a general rule, that a party can claim to have a contract interpreted in the sense in which he believed it, at the time of making the contract, to be understood by the other party. This is, however, not so much 011 account of anything in the nature of consent, as on the prin- ciple of estoppel. Consent has thus been said to be analogous to estoppel or a species of it n , and the same principle will, to some extent, apply to other branches of law also. As observed by Blackburn, J., in Smith v. Hut/hen 12 , "if, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to 11 IBish. Cr. Pr., 70. I 1* 6 Q. B.. 607. S. 14.] NO CONSENT WITHOUT KNOWLEDGE. 19 the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms." Similarly, in Reg. v. Hehir w , Palles, C.B., said : " I apprehend that according to our law, as one's mental act, such as consent or intention, can be known to another .only by his external act, it follows that where the actually existing intention, by mistake, differs from the intention expressed by the external act which signifies it, the expressed intention must, in rela- tion to the act of another, honestly induced by such express- ed intention, be deemed to be the real intention. This matter may be tested by cases of written contracts, in which the only intention which the law recognises is that expressed in the writing. In such a case, if there be a material mistake as to the subject-matter of the contract, the law does not say that, by reason of that mistake, the signing of that contract is reduced from an intelligent act to something from which intelligence and consciousness are absent, or that that act of signing did not carry legal consequences because the party signing, did not, in a sense, know the exact thing he was doing, and did not intend to do that very thing. In such a case the remedy, if any, would be in equity on the ground of mistake." 14. Consent, however, is never any thing other than an intellectual operation or condition of the No consent to an mincL Besides concurrence of wills, its act without know- , . r ,. , ,., , . ledo-e thereof. cniet essential constituent is a consciousness or knowledge of the act consented to. It is clear that there can be no consent to an act without knowledge thereof. In the nature of things what is not known cannot be consented to. In Ee 8nd the intention and motive with which, the act is done, and the consequences which it involves, except as regards the aforesaid object, have, if any, only a secondary importance. Consent, in the law of contracts, is therefore defined aspactio dnorurn pluriumve in idem placitum consensus. The Italian jurists define it from the promisor's point of view as la volonta tsria e definitira di costitairst debitori verso altri () ; from the point of the promisee as la volonta seria e ruoluta di aeques- tare un credito, obbligando altri verso noi 1 * (f) ; and generally as la conformita e la partecipazione delle due volonta 20(y) . The Indian Contract Act lays down that two or more persons are said to consent, when they agree upon the same thing in the same sense. The word " thing," taken with the (e) The will, serious and definite, of making oneself the debtor of another. (/) The will, serious and resolute, of acquiring a credit, and obliging another towards oneself. (g) The conformity and the participation of two wills. * 9 III Giorg Teo. Obbl., 134, 132. 20 JY Giorg. Teo. Obbl., 34, 22 CONSENT IN NON-CONTEACT LAW. [S. 17. context, must be deemed to refer primarily to the act in regard to which there is an agreement. It appears to be generally agreed upon that there must be an agreement not only as to the nature of the act ; but, if the act refer to an object, also to the identity or substance of that object. In some contracts, the identity of the parties is also an essential attribute of the act agreed upon, and there will be no consent to an act independent of them. 17. In other branches of law, however, the same subjective and objective aspects of the act consented Consent m non- t() h t th importance which they contract law. . J nave in the law 01 contracts. In the law ol torts, for example, it is the consequences of the act, the harm actually resulting from the act, that have the greatest import- ance ; and therefore an agreement as to the act and its natural and direct consequences may be a consent apart from the identity of the object that may be affected by that act. tn the law of crimes also, the object, of the act is of secondary importance ; the will, intention, and the motive with which the act is done, sharing with the consequences contemplated the importance that the latter have in the law of torts. The personality of the doer must also bear a greater importance in these laws, than in the law of contracts ; but will not, in all cases, be an essential constituent of the act. A consent given to one person shall not, therefore, generally avail any other person or excuse the act if done by any other. Consent to be killed by a person will not place a man beyond the pale of the law of murder so as to be killed by any one without fear of the penalty of death, though the idea of any particular person may not be implied in case of a patient suffering from an acute pain asking for the performance of an operation that turns out fatal, or, in case of a soldier lying on a conquered field praying to have an end put to his last agonies. In Germany, Ortmann and Rodenbeck take an opposite view, and allow X, icenn er einwilligt, vom Y yetodtet zu werden t dadurcli zu einem "untaug lichen objecte" fur den Mord werden; so dass wenn hierauf Z, ohne Kentniss jener Einwittigung, den X todte, dies nurein Mordversuch am uniaug- lichen oljecte sei (h) . Kessler shows, however, the mistake of that view, and says: selbst das Todesiirtheil macht anerkanntermassen (//) When he has consented to be killed by Y to become thereby an unsuccessful object for murder, so that if Z should thereupon, without knowledge of that consent, kill X, this would only be an attempt at murder on n unsuccessful object. S. 18.] A PERSON WHILE ASLEEP CANNOT GIVE CONSENT. 3 den verurtheilten nur dem Scharfrichter gegeniiber zur bestimmten Stundesu einem untauglichen Objectef'dr denMord; unddie blosse EiniriUigung in die Todtung durch eine bestimmte Person sollte eine derartige Wirkung jedem Beliebigen gegeniiber haben 21(0 . Definitions of 'consent in the law of torts and the law of crime may thus well be different from those in the law of contracts, having reference rather to the physical consequences and the mental aspect of the act, respectively, than to the act and the object to which the act relates. 18. It is on account of the necessity of the knowledge of the act for the consent, that sexual inter- A person while course w j t ] 1 a woman w hil e asleep has been asleep cannot give , , , , . , ^ . consent. held to be without her consent, Inus Dr. Wharton, in his work on Criminal Law, says " that an unconscious submission during sleep is rape is now settled." 2a In Reg. v. Mayers 23 , Lush, J., observed, in the course of the argument, that " if she was asleep, she was incapable of consent, and therefore it would be a rape "; and, in summing up, he laid down *' that if a man gets into bed with a woman while she is asleep, and he kno\vs she is asleep, and he has connection with her, or attempted to do so while in that state, he is guilty of rape in the one case and of the attempt in the other." The same was held in Reg. v. Young* 4 , in which she, on awaking, flung him off ; and, though the prisoner must have known that she was asleep, there is no reference made to that circumstance in the Report. {A) In Reg. v. Lock 25 , Kelly, C. B., speaking, by way of argu- ment, of the case of a connection with a woman while asleep, said: "In such a case consent is out of the question, for a woman whilst asleep is in such a state that she cannot consent, and the act of connection with her under the circumstances is quite sufficient to constitute an assault." (/) Even a sentence of death makes the condemned, as is well known, an unsuccessful object for killing only for the executioner at a certain hour, and should the mere consent to be killed by a certain person have such an effect for any other person. (A) In some of the cases in which there has been a connection, the woman was said to be bon'l fide asleep, and the man committing the intercourse to have known her to be asleep, but it does not appear that, in any case, the decision turned on the fact of his knowledge, and, though non omnes dormiunt quelovsos et connivents, of course one cannot be said to be asleep, unless she is asleep bona fide. 2 1 Kens. Einw., 22. I 12 Cox C. C., 311. " L, 522. a * 14 Cor C. C., 114. s 12 GOT C. C., 246. 24 A PERSON WHILE ASLEEP CANNOT GIVE CONSENT. [S. 18. The same was held in the United States in Harvey v. State' 5 ", in which Hughes, J., in delivering the opinion of the Supreme Court of Arkansas approved of the decision in Reg. v. Mayers, and said " we have considered the cases of Sullivant v. fttate, and Charles v. State 27 , and cannot assent to the doctrine of the latter cases, that if the prisoner designed to accomplish his purpose while the woman was asleep, he was not guilty of an attempt to commit rape." (B) In Reg v. Barroic ZB , there was an acquittal, but it proceeded on the ground that it did not appear that the prosecutrix was asleep or unconscious at the time when the connection took place. In Com. v, Fields 29 , it was held that a perse a, who intended to have sexual inter- couse with a woman, while she was asleep, would not be guilty of rape ; but the decision, in that case, as well as in other similar cases, 30 turned on the early theory as to the requirement of force to constitute rape, to which reference will be made later on. In R. v. S weenie 31 , it was held by the majority of the Court, in Scotland that sexual intercourse with a woman, while asleep, was not rape. This decision turned, how- ever, on the ground that force and violence were necessary for rape, that the physical force incidental to the sexual inter- course was not sufficient to constitute rape, and that, though constructive force had been considered sufficient in some cases, yet that there was not sufficient authority for holding that there was constructive force in a case where the connection was had with a woman while asleep. (C) (B) In Lewis v. State 32 , a girl testified that she was awakened by the pleasure of sexual enjoyment, when she found the accused having intercourse with her, that she asked him to go away, but was told, in reply, to keep still, and that she did not consent, but that she made no outcry and no resistance. Woodward, J., in delivering the opinion of the court, said : " The fact of the girl being asleep is a circumstance, but one of very little or no moment, unless there were some manifestations of dissent when she awoke. It is just as consistent with willingness as with unwillingness, and takes its character from the subsequent acts." The fact that there could possibly be no state of mind prior to the act on account of sleep, that could be called consent, and that even a subsequent consent after awakening when the penetration had taken place, could have no effect, was not con- sidered. (C) Lord Ardmillan, who agreed with the majority of the court, observed: "If lam right in holding that the definition of rape is not satisfied, as regards the element of force, by S 53 Ark., 425. 10 8 Ark., 400. 2 * 11 Ark.. 390. 19 II Cox. C. 0., 191. 4 Leigh, 648. so Com. r. Bush, 105 Mass., 37C. 3i 8 Cox C. C.,223. * 30 Ala., 54. S. 19.] INTERCOURSE WITH UNCONSCIOUS FEMALE IS EAPB. 25 Lord Ivory and Lord President Macneill dissented from the majority, holding that intercourse with a woman without her consent was sufficient to constitute rape, and that, as no consent could be given by a person asleep, the offence of rape had been committed. 19. And, apparently, the same rule will apply when there is no sleep, but unconsciousness from liquor No consent if want O r other cause. Thus in Queen v. Camplin 3 *, of knowledge due to sexua i connection with a young woman, unconsciousness on i M -T~I e j.- i i j other account. while insensible from intoxication, was held to be rape. The intoxication was caused by intoxicating liquors given to her by him ; and the jury found that they were given not to make her insensible, but simply to excite her, though he took advantage of the insensibility brought on her. For the accused, it. was con- tended that he had only offered the liquor, and her drink- ing it was her own voluntary act. Tindal, C. J., pointed out, in the course of argument, that that would not be the mere bodily contact, implied in every act of connection, then, in the case before us there is no amount of force, actual or constructive, and none can enter into the act charg- ed, unless we are prepared to introduce it by force of a legal presumption. No suck presumption in the case of a sleeping woman has yet been recognized by law. It does not, like the presumption iu the case of a child, rest on the basis of undivided institutional authority, and of uhiform judicial recognition. It is a new presumption never hitherto recognized, and, though it may perhaps not be unreasonable, and there may be some affini- ties and analogies to support it. yet I am not prepared, for the first time, to establish it by our decision. Without such a presumption to introduce the element of force, it appears to me that the act here charged cannot be tried as rape." Lord Deas, after referring to the case of children and of idiots as exceptional, said: " It does not follow that because an exception is mado of cases in which by law, or both by law and nature, the parties are totally disqualified from consenting, an exception shall equally be made of the case of a woman who might have consented if awake, although she neither did nor could consent being asleep. Beyond the case of parties whom the law holds incapable of consent, we have no recorded instance of the element of force being altogether omitted in the indictment." After referring to the cases of a woman being drugged into uncon- sciousness, he went on to say that they involved " one element, at least, which is not here, viz : the woman being in a state of disease, which it would have been a criminal and violent proceeding for the man to have used means to produce, and it may be a grave question when it arises, whether taking advantage of ^that state of disease is not equi- valent to using means to induce it. Here the woman was not in a state of disease at all, but in the natural state of sleep. There is no room for alleging either criminality or violence, actual or constructive, in the production of that state, or any duty of assistance towards recovery connected with it, and although the distinction may be thin between taking advantage of a state of disease and taking advantage of the state of natural sleep, it is necessary to observe by what slight and almost imperceptible steps in the argument it is proposed to lead us on to hold that to be rape, which has never been held to be rap before; first drugging by the man, about which I do not say I should much hesitate; next, accidental drugging by another, or by the woman herself ; then the case of a woman found in a faint ; and, lastly, the case of a woman under no disease, either induced or accidental, but in the natural state of sleep. Stop we must at some thin distinction, or I do not know where we are to stop at all, in dispensing with the element of force, either actual or constructive, which, as a general rule, although not without exceptions, has been immemorially deemed necessary, iu our practice to the charge of rape,'' as 1 Cox C. C.. 220. 26 INTEBOOURSE WITH UNCONSCIOUS FEMALE' IS RAPE. [g. 19. consistent with the finding as to his having given her liquor with intent to excite her. Alderson, B., observed that it might be considered against the general presumable will of a woman that a man should have unlawful connection with her. Patteson, J., in delivering the judgment of the court, said : " The prosecutrix showed by her words and conduct up to the very latest moment, at which she had sense or power to express her will, that it was against her will that such intercourse should take place ; and it was by your illegal act alone, that of ad- ministering liquor to her to excite her to consent to your unlawful desires, that she was deprived of the power of con- tinuing to express such want of consent. Whatever your original intention was in giving her the liquor, you knew that it was calculated, in its natural consequences, to make her insensible, and you knew also that it had produced that eifect upon her at the time you took advantage of her insensi- bility."^ In Rex. v. Charter 35 , the carnal knowledge of a woman laboring under delirium, who was insensible to the act, was held to be rape. In Queen v. Ryan 36 , the prosecutrix was an idiot and therefore incapable of giving consent, and as her habits were said to be of decency and propriety, the presumption was against her consenting to the act of intercourse. Platt, B., however, in summing up, said: "If she was in a state of uncon- sciousness, at the time the connection took place, whether it was produced by any act of the prisoner, or by any act of her own, any one having connection with her would be guilty of rape. If she was in a state of unconsciousness, the law assumes tbat the connection took place without her consent, and the prisoner is guilty." Similarly, May, C. J., in Reg. v. Dee 37 , observed that there was no doubt that unlawful con- nection with a woman in a state of unconsciousness produced by profound sleep, stupor or otherwise, if the man knew that the woman was in such a state, amounted to rape. (D) It appears from the judgment of Patteson, J., as well as by the contemporaneous notes of Parks. P., printed in a note to 1 Den., 92, and of Alderson, B.. as read by him in Queen v. Page 3 * that the decision was in3uenced by the fact that, before the girl became insensible, the man had attempted to procure her consent, and had failed. But it further appears from those notes that Lord Denman, C. J., Parke, B., and Patteson, J., thought that the violation of any woman without her consent, while .she should be in a state of insensibility and have no powor over her will, by a man knowing, at the time, that she was in that state, was a rape, whether such state was caused by him or not ; for example, as Alderson, B., added, " in the case of a woman insensibly drunk in the streets not made so by the prisoner." 3* 2 Cox. C. C., 133. I 30 2 Cox. 0. C., 115. 35 13 Shaw's J. P., 746. 37 15 Cox. C. C., 679. S. 19.] INTERCOURSE WITH UNCONSCIOUS FEMALE IS RAPE. 27 The same has been held in the United States also. Thus in Com. v. Burke 33 , Gray, J., in delivering the opinion of the court, said : '* We are unanimously of opinion that the crime of a man's having carnal intercourse with a woman, without her consent, while she was, as he knew, wholly insensible, so as to be incapable of consenting, and with such force as was necessary to accomplish the purpose, was rape. If it were otherwise, any woman in a state of utter stupefaction, whether caused by drunkenness, sudden disease, the blow of a third person, or drugs which she had been persuaded to take, even by the defendant himself, would be unprotected from personal dishonor." w Dr. Bishop says : 39 " It is doubtless sound legal doctrine, and is not denied, that, as laid down by Lawrence, J., in the Ohio Case, 40 where a woman has chloroform, for example, given her by a man to bring about with her a carnal inter- course, to which she would not otherwise consent, then, if she had the capacity to hear, feel, and remember, and a capacity to speak and forcibly resist, but the inclination to do so was lost, the will overcome by the action of chloroform, either operating upon the will faculty, or the judgment and reflective faculties (or sexual emotions), so that the mind was thereby incapable of fairly comprehending the nature and conse- quences of sexual intercourse, and the defendant, knowing these facts, had unlawful carnal knowledge of her, forcibly, that would be rape. And it would, in such a case, be wholly immaterial whether the entire mind was disordered and overthrown, or only such faculties thereof as are rendered incapable of having just conceptions, and drawing therefrom correct conclusions in relation to the alleged rape." It is provided by the New York 41 and California 42 Penal Codes, that sexual intercourse with a woman is rape, where she is, at the time of the intercourse, " unconscious of the nature of the act, and this is known to the accused." (E) In People v. Quin, * 3 the intercourse with a woman while intoxicated was held not to be rape,but there was no evidence that the original intent was to use force, and the decision proceeded on the wording of a particular statute. In People v. Royal, ** a person had practised manipulations upon a girl of sixteen years until she was so dull and stupid as to be uuconscious of the nature of the act of sexual intercourse, and he was held not guilty of rape. 33 105 Mass., 376. 39 11 Bish. Cr.L., 651. 40 S. v. Green, Whart. and Stil. Med. Jur., 459. N. T., P. C., s. 278. 48 Cal. P. C., s. 261. * 3 50 Barb., 128. ** 53 Cal., 62. 28 KNOWLEDGE OF CASUAL INCIDENTS 01 ACT. [8. 2O. 20. Consent to an act involves knowledge, however, only of the act which is consented to, and not Consent to an act necessarily of all its subjective and objec- does not involve ti aspects. Thus, when consent is given knowledge of its non- , , . . essential incidents. to an act merely as such, it will not import the knowledge of the circumstances in which the act is to be done, nor of any consequences which it shall produce. Even entire unconsciousness of these will not affect the existence or reality of the consent given to the act. And, a fortiori^ consent to an act will not be affected by the unconsciousness or ignorance of, or a mistake in regard to, any other incidents 'of the act, as, e.g., of the legal character or competency, or the physical condition of the person doing the act, or of the physical, legal, or moral aspect of the consequences of the act. Sexual intercourse by a medical practitioner with a diseased woman submitting to it under the impression that she was being treated medically, or that the act was a medical operation that would cure her, has often been held to be rape on the ground of want of consent. Thus in Reg. v. Case 45 , the girl passively consented to her being treated medically, and the consent was held not to extend to the sexual connection with her, which she did not resist, because she believed it to be a medical treatment. Before commencing the act, the accused had represented to her that he must try further means for her cure, and she therefore believed that the act was one done for the cure. AVilde, 0. J., said : *' She made no resistance to an act which she supposed to be quite different from what it was, and therefore that which was done was done without her consent." Platt, B., said : " The girl consents to one thing, and the defendant does another, that other involving an assault." It is submitted, however, that the act was the same whatever its moral character or object, whether it was one of pure sensual gratification or of medical treatment. The identity and the nature of the act could not be affected by her ignorance of its moral aspect or physical incidents ; and the real ground for the conviction was expressed by Patteson, J.,who said that there was no resistance to the act, but, at the same time, there was no evidence that she consented, and, as the conviction was only for assault, the ques- tion of the act being of force or against her will did not arise. 45 4 Cox C. C., 220. 8. 2O.] SEXUAL 1NTEECOUESE AS 8UEGICAL OPERA1ION. 29 In Queen v. Flattery 46 , a female., nineteen years old, consented to what the medical adviser called breaking the nature's string, only understanding that it was some surgical operation that would do good to her health. He had connec- tion with her, she making but feeble resistance, as she believed that he was merely treating her medically and performing a surgical operation. It was attempted to distinguish the case from that of Reg. v. Case, on the ground that there was no finding in this case as to her not having known the nature of the act done to her, and, having regard to her age, she must have known the nature of sexual connection. Kelly, C.B., said, however, that he was not prepared to say that " if she did know the nature of sexual intercourse, it would have been any evidence of consent ... It appears that she submitted to what was done under the belief that the prisoner was performing a surgical operation to cure her of her illness." Similarly, Mellor, J., said : " The prosecutrix consented to be treated medically and to have a surgical operation performed, and to nothing else, and in no sense did she consent to the prisoner having connection with her." This decision was followed in Pomeroy v. State 41 , the facts of which were quite similar, and in which the accused professing to be a medical man, with a view to effect a medical cure of one Rebecca, a woman of twenty- two years of age, put his hand under her private clothes to examine her, and, on her making an objection to the examination, said that she must let him examine her ; and, next morning, he took her into a private room, and, while pretending to make a further examination of her person, succeeded in having sexual intercourse with her, and, though she made no outcry at the time, she was crying after he had gone, and complained to her mother of the ' outrage " he had committed upon her. Hawk, C. J., in delivering the opinion of the Supreme Court of Indiana, said : "If the jury believed that the appellant, as a physician, obtained possession and control of Rebecca's person for the purpose of making a further examination of her alleged disease of the womb, and not for the purpose of sexual intercourse, and that she never, in fact, gave her consent, through fraud or otherwise, to the sexual connection, then it seems to us that the case falls fairly within the doctrine declared in Queen v. Flattery." *fl 13 Cox. 0. 0., 388. | * 94 Ind., 96. 30 KNOWLEDGE OF CHARACTER OP ACT NOT NECESSARY. [S. 21 In Walter v. People 48 also, it was alleged that the offender went on with sexual intercourse with a woman of thirty years of age, while professing to be making a physical examination of her person, and she believed his professions. He was acquitted, but only as it was not credited in the cir- cumstances, that she did not understand the nature of the act of sexual intercourse. The view taken in these cases of the act consented to appears to be based on a wrong notion of the identity of an act. She did not resist sufficiently, and thus acquiesced in a certain act, which was an act of sexual intercourse ; and the identity of the act to which she consented, cannot be consider- ed altered because of the fraud and mistake on account of which the consent was given. The conviction, in such cases, may, however, be justified on the ground referred to by Kelly, O.B., in his decision in Queen v. Flattery, "that, even if she had such knowledge (of the act), she might have supposed that penetration was being effected with the hand or with an instrument, as in such a case, the act consented to would, of course, be different from that done." 21. On the same principle, however, sexual intercourse, by a person with a woman consenting to it Knowledge of under the belief that he is her husband, character of an act nag been held to ^ w i t hout her COU- sen ^' on ^ ie g roun d, sometimes, that her consent, in such a case, is to a lawful and marital act of duty and not to an act of adultery. Thus in Reg. v. Dee 49 , it was held that a connection with a person believing him to be one's husband would not be with her consent, and May, C. J., said : " She intends to consent to a lawful and marital act, to which it is her duty to submit. But did she consent to an act of adultery ? Are not the acts themselves wholly different in their moral nature. The act she permitted cannot properly be regarded as the real act which took place." Palles, U.B,, after observing, that " excluding cases in which the doctrine of estoppel applies, an act done under the bond- fide belief that it is another act different in its essence is not in law the act of the party," said : "The person, by whom the act was to be performed, was part of its essence. The consent of the intellect, the only consent known to the law, was to the 4 50 Barb., 144. | * 9 15 Cox. C. C., 679, S. 21.] NO CONSENT IF MIND INCAFABL E OF KNOWLEDGE. 31 act of the husband only, and of this the prisoner was aware. What the woman consented to was not adultery but marital intercourse. The act consented to was not a crime in law ; it would not subject her to a divorce. ... I cannot entertain any doubt that the violation by a stranger of the person of a married woman is, in the view of that law, as it is in morality, an act different in nature from the lawful act of the husband." Similarly, Lawson, J., said: " If she consents to her husband having connection with her, and the act is done, not by her husband, but by another man personating the husband, there is no consent to the prisoner having connection with her." This might be correct, if, after giving the consent, she fell asleep or became insensible, and thus could not give consent to the act of the person personating the husband ; but if she was conscious at the time of the act, and consented to the act under the impression that the person doing the act was her husband, she must be deemed, notwithstanding her wrong belief, to have consented to the act. Taken, how- ever, with the facts with reference to which the statement was made, it was not correct. And apart from the correctness of the final decision in the case, it appears that the particular statements made by the other Judges also as to the non-identity of the act consented to with the act done are not tenable. The statement by May, C. J., was even independent of the physical identity of the person who had the intercourse, and will be equally applicable if the inter- course was had by a person who had gone through a mock ceremony of marriage with her, and was, merely by a mistake of law, believed to be her husband. Even in such a case the act will be one which she believed to be an act of duty, yet the correctness of the proposition as to the non-identity of the act, will hardly be maintained by any one and the act will really be an act of adultery. The consent, in such case, is to an act by a certain person, and the mere circumstance that it was given under a wrong belief, that that person stood in a certain legal relation to her in which he did not stand, or that the act was legal when it was not legal, cannot affect the identity of the acts or the existence of the consent given to it. As to the statement by Palles, C. B., it may also be observed that the consent was not to an act of the husband, but to the act of the person who had the intercourse, though it was given under the mistaken belief that that person w T asher husband, and the mistake was caused by that person himself. 32 ABILITY TO UNDERSTAND ACT CONSENTED TO. [S. 22. 22. There can be no real consent, however, when the mind No consent where is i nca P a ble of the operation that constitutes mind incapable of consent, or of the knowledge which is operation required for essential to consent. This is the ca&e in consent or of know- regard to persons who are very young or of unsound mind. It is on this same prin- ciple that, in the case of a female child, and also in some cases of insanity or imbecility of all females, the English law usually holds them to have no will in the matter of sexual connection with them, and the act of intercourse, though not actually forcible, is treated as such in the estimation of law 50 . Consent to different acts imports a knowledge of different matters of different degrees of complexity, and a person may be quite competent to know or understand one act, while he is utterly unable to grasp another. It is thus impossible to lay down any fixed standard of intelligence, as applicable to all acts and to all cases ; and the only rule that can practically be laid down is that for a man to give real consent, it is neces- sary that he should be able to know and understand the act consented to. For free and intelligent consent, and specially for such consent as may be operative in criminal law, a superior standard of intelligence is generally required ; and an ability to understand the nature and consequences of the act consented to also considered necessary. It appears, how- ever, that for real consent as such, anything further than an ability to understand the act is not necessary. In Comm. v. Roosnell* 1 , the Supreme Court of Massachusetts attempted to justify the immateriality of the consent of a young girl below ten years of age. Allen, J., in delivering the opinion of the court, observed that, " although she gives a formal and apparent consent, yet, in law, as in reality, she gives none, because she does not and cannot take in the meaning of what is done." 80 K. v. Sweenie, 8 Cox.C. C., 224, | 51 143 Mass., 32. per Lord Ardmillon. SS. 23, 24.J CONSENT INDEPENDENT OF ITS QUALIFICATIONS. 33 CHAPTER III. CONSENT is INDEPENDENT OF ITS QUALIFICATIONS. 23. That consent as such is independent of all considera- tions relating- to the capacity of the per- of consent son giving the consents, and to the cir- c'onsklerl- c mst ances in, and on account of, whidi ti.ms. it has been given appears to be admitted, by most jurists. These considerations may affert the validity of the consent, but not its existence ; and the distinction between these two conditions is recognized in almost every system of jurisprudence. Bentham, in his work on Morals and Legislation, 1 says that the alarm created, and the unpleasantness caused are quite different when there is no consent, and when there is consent ; but the consent is not a fair or a free one, having been obtained by fraud or force respectively. The difference between the existence and the non-existence of consent is pithily put by him when he says : "The pleasure of the sexual appetite, if reaped at all, must have been reaped either against the consent of the party, or with consent. If with consent, the' consent must have been obtained either freely and fairly both, or freely but not fairly, or else not even freely, in which case the fairness is out of the question. If the consent be altogether wanting, the offence is called rape ; if not fairly obtained, seduction simply ; if not freely, it may be called forcible seduction.'* 24-. In the law of contracts it is quite wrong, as Savigny 2 has shown, to say that a consent In contracts commt determined by mistake, coercion or fraud, not free or iair, ma be , r\ ^ . i. r consent. 1S no consen t. Consent that is not fair or free, is not the less a consent on that ground Its effect on a contract in those two cases is essentially different. Thus while the absence of consent prevents the formation of a contract, the absence of a free and fair consent makes it, as will appear later on, only voidable. Thus it is said, " where the consent of one party to a contract is obtained by the other under such circumstances 1 P. 253. | a Sjs. 8-s. 114, 115. 3 I EXISTENCE OF CONSENT IN CONTRACTS. S 24. that the co-nsent is not free, the contract is voidable at the option of the party coerced. If, however, there was no consent whatever, as if the party's hand was forcibly guided to sign his name, or, perhaps, if he was so prostrated by fear as not to know what he was doing, the contract is absolutely null and void." 3 Etsi coactus volmt, attamen volitit, is a general maxim of the Roman law. Giorgio Giorgi, in his work on the Theory of Obligations., says 4 : // consenso estorto daUa molen&a e pur tuttaviu consenso . . per cui anche net contralto concluso nelT imminenza del pericolo, e sotto it costringimento di un grave male, vi e sempre concorso di volonta. Vi c concorso di volontd, perche anche il coatto vuolle, e con csercizio libero del suo arhi- trio si determina a preferire al male ndnacciato la conc/usione del contralto .... gli rimaneva la possibilila di see/fa fra il male winacciato e la conclusione del contra! to. (a) Una violenza, che costringa il paziente a concludere suo malgrado un contralto, pub derivare tanto da una forza fisica, la quale ren- dendo la vittima strumenlo mecanico dell'altrul volonta yli faccia sottoscrivere material mente it contratlo. quanto da una forza morale^ che col mezzo di qualche grave minaccia indwa il pazi- ente a cvnsentire. Nel primo caso il conlraente agisce invito. e come corpo pit ramente jisico, che obbedisce necessarianiente alVitnpnlso di un corpo pin forte. i\W secondo caso agisce coatto, vale a dire con un certo concorso della intellitjenza e della volonta ; ma, torniamo a ripeterlo, con volonta menoinata nella Liberia di elezione. Infatli nella violenza ftsica rndlo e il concorso della dj e manca o;/ni principio di c,onsenso. w So also Emile Acollas, in his work on Contracts, says 5 : Le consentement. qui est a?i acte de la volonte, cst expose comme (a) Consent extorted by Tiolencc is still consent, on account of which there is an agreement of wills even when the contract has been concluded in imminent peril, and under the constraint of a serious evil. There is an agreement of wills, because even the ooerced person wishes, and with the free exercise of his judgment, determines to prefer the concluding of the contract to the evil threatened. There remained to him the choice between the evil threatened and the concluding of the contract. (fc) A violence which constrains the person coerced to conclude a contract in spite of himself, can arise just as ranch from a physical force, which, rendering the victim a mechanical instrument of another's will, should make him physically subscribe the contract, as from a moral force, which by means of some grave threat induces him to consent. In the first case, the contracting party aots against his will, and as a purely physical body which must necessirily obey the impulse of a stronger body. In the seoond case, the coe ced person acts, that is to say, with a certain concourse of intelli- gence and will, but let us repeat with a will diminished in its liberty of choice. In fact in physical violence, there is no agreement of wills, and all principle of consent \i wanting. 3 28 En7c. L., 479. | * Iy. 89. | 6 T. SS. 25, 26.] COERCION. 35 la volonte a sublr des atteintes plus ou moins graves, et Von concoit fort bien, de prime abord, qu'il y ait telles atteintes propres a fair e considerer le consentement comme n'ayant pas existe, telles autres propres a le faire considerer comme ^implement diminue. 25. It is recognized, however, as a general rule, that mutual consent of the parties to a con- Consent required tract, which is essential to every agreement. to be free and tair -i r ^ f mi i n for valid contracts. must be tree and fair. 1 he element of obligation underlying a contract springs primarily from this mutual consent, and where that consent is constrained and involuntary, or misled and unintelligent, the parties will not be held obligated or bound by it. There will thus be no valid and binding contract, where the consent of the parties to it is caused by coercion or error, or any particular form of them. The French Civil Code says : II n'y a point de consentement ualable, si le consentement n'a ete donne que par erreur, ou s'il a ete extorque par violence ou surpris par doL 6 The Italian Civil Code similarly says : II consenso non e valido, se fu dato per errore, estorto con violenza o carpito con dolo. 7 (c) The Indian Contract Acfc expressly provides that an agree- ment is a contract, only if made by the free consent of parties competent to contract 8 ; and consent is said to be not free when it is given on account of the existence of coercion, undue influence, fraud, misrepresentation, or mistake, as denned in that Act. 9 26. The term coercion is used in a comprehensive sense. It is thus, in the Indian Contract Act 10 , Coercion as affect- Denned as "the committing, or threaten- ing freedom or con- . . f i/'jj 't. A r ge t ing to commit any act forbidden by the Indian Penal Code, or the unlawful detain- ing or threatening to detain any property]! to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement." It thus includes both the vis and the metus of the Roman Law ; the former being majoris rei (c) Consent is not valid, if it was given on account of error, extorted by violence or grasped by fraud. 6 S. 1109. I s S. 10, Act IX of 1872. ' S. 1108. 9 S. 14, Act IX of 1872. 10 S. 15, Act IX of 1872. 3 g DURESS IN ENGLISH LAW. [S. 27. impetus, qui repelli non potest ; and metus the oplnin unpenden- tis mali quod intolerable esse videatur ; and as observed by Ulpian nothing is so contrary to consent as vis or metum. The term is used in a similar broad sense in the continental systems of law. Thus, in the French law, coercion is designated violence, and the French Civil Code lays down, that there is violence when it is such as to make impression over a personne raisonable et quelle peut lui inspirer la crainte d'etrposer sa personne ou sa fortune a un mal considerable et present n . Nor is the term restricted to violence against the person who has contracted the obligation, but extends also to cases in which it has been exercised surson epoux ou sur son epouse, sur ses des- cendants ou ses ascendants. The Belgic Civil Code has enacted the same. The rule of the Italian Civil Code is the same, except that it requires the fear to be reasonable, and does not require the evil threatened to be a present one 12 , In the Spanish Civil Code 13 , the expression violence is restricted to the use of irresistible force ; but intimidation is said to be a cause of the vitiation of consent, and to exist when it inspires in one of the contracting parties a reasonable and well grounded fear of suffering an imminent and grave evil to his person or goods or to the person or goods of his (or her) spouse, descendants or ascendants. 27. In the English law, coercion is generally designated as duress, and has still a rather limited signifi- General significa- cation> Jt had a restricted signification tion of duress in Lng- . , ^ ,. , , J . , ,. ,, lish Law. m ^ ne Jangliaa law, restricted originally, as in the Roman Law (A \ to injuries to life and limb. Coke said that a man could not avoid his act on the ground that it was procured by the fear of battery, burning his house, taking away or destroying his goods, or the like; for there he may have satisfaction by the recovery of damages ". Actual violence does not appear to have long been held to be exclusive- ly necessary, menace having been a distinctly recognized species of duress even in Coke's time. Moral compulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, was regarded as suffi- cient, in law, to destroy free agency, without which there can be {A) Thus Diocletian had ordered : Ncc tarn-en quili'bit metus ad rcscindenda ea yuee consenau tarmlnata $unt, sufficit. sed talent wetum, probnri oportct, tjui salatispericiilum vel corporis cruciatum continant. 11 S. 1112. I ta 8. 1267. i S. 1112. i* 2Inst. 483. S. 27.] DURESS IN THE UNITED STATES 37 no free consent. Such threats formed, in fact, a special sort of duress, usually designated as per minas. As to the fear of impri- sonment, Coke said that it was enough to constitute duress, and this has been understood ever since to have been the rule 15 . Nor need the threats, to constitute duress be to the party himself. Duress per minas included threats to one's near relations also. Persona conjuncta aeqv-i paratur interesse proprio. Commenting on the maxim, Bacon says : "so if a man menace me, that he will imprison or hurt in body my father or my child, except I make unto him an obligation, I shall avoid this duress, as well as if the duress had been to mine own person." In the United States, a more liberal rule is recognized in regard to the nature of the injury caused or threatened. It is generally held that contracts procured by threats of battery to the person, or of the destruction of property may be avoided on the ground of duress. Thus in Love v. State, 16 a threat of causing hurt was held to constitute duress vsufficient to prevent consent being free. The leading decision appears to be that of Foshay v. Ferguson} 1 , in which Bronson, J., in delivering the opinion of the Supreme Court of New York, entertained " no doubt that a contract procured by threats and the fear of battery, or the destruction of property, may be avoided on the ground of duress," and said " there is nothing but the form of a contract in such a case, without the substance. It wants the voluntary assent of the party to be bound by it." It was further contended in that case, that there must be a threat of life or limb, or of mayhem, and that a man could not avoid his contract on the ground that it was procured through the fear of illegal imprisonment ; but the contention was overruled on the authority mainly of Coke, and Bronson, J., said : "If the defendant arrested the plaintiff under pretense that he had a warrant, when in fact he had none, or if he arrested the plaintiff under a warrant issued by a justice of the peace in the county of H., which had not been indorsed in S., the imprisonment was, in either case, unlawful ; and a contract procured by such means cannot be supported. It wants the essential ingredient of the free assent of the contracting party. No rights can be acquired by such an act of violence. All the books agree that a man may avoid his deed for duress of 15 2 Inflt, 483 ; Co Litt., 2536. | i 78 Ga., 66. " 5 Hill., 158. 38 NATURE OF THREATS CONSTITUTING DUBESS. [S. 27. imprisonment. Some of the cases hold that the deed may be avoided, although the imprisonment was under legal process." Even threats by a husband of abandonment or separation of his wife have been held to constitute duress to her, and to invalidate a contract executed by her on account of them. Thus in Tapley v. Tapley 19 , the Court said: " Looking at the reason of things, if, as is well settled, a threat of injury to goods and other property, a threat of a battery or of illegal imprisonment, are held sufficient to constitute duress and to avoid a contract, on the ground that they take away freedom of action, and are calculated to overcome the mind of a person of ordinary firmness, when believed in, it wo aid seem too clear for argument that equal effect ought to be given to a threat by a husband to abandon his wife and turn her out upon the world to shift for herself in the anomalous condition of a wife without a husband. If the degree of injury apprehended, and its almost remediless nature, are to be taken into account (and not to do so would be irrational), then certainly in these respects the abandonment of a wife by her husband is far in excess of a battery to the person or a trespass upon the goods, and stands upon stronger ground." This decision was cited with approval in Kokowwk v. Marah, and the same was held in Line v. Blizzard. Threats by the husband to burn down the house and carry away the children have also been held to constitute duress and to avoid a conveyance made by the wife under their effect. 21 A threat of suicide by a husband has been held, how- ever, by the Supreme Court of Vroom not to constitute duress 23 . The only ground mentioned in support of this view was that such a rule would lead to an instability in a class of contracts which would be vicious, and that there was no trace of the doctrine that the threat of a husband against himself would avoid the contract of his wife or conversely ; Reed, J., observ- ing, " I am unable to perceive that any duress, in the sense in which the law has heretofore regarded it, exists in this case either to the husband or through him to the wife." This deci- sion was affirmed by the majority of the Court of Errors and Appeals 23 , the Chancellor observing in the opinion that ' ob- viously in view of the facility of making a defence on that ground, the difficulty of meeting it, and the temptation to fraudulent disposition it would hold out to allow it, it 18 10 Minn., 448. | 1 54 Tex., 201. | 20 70 Ind., 23. 21 Wiley v. Prince, 21 Tex., 641 ; Central Bank r. Copelaiid, 18 Md. 319. aa Wright v. Remington, 12 Vroom, 48. | 23 14 Vroom, 451. 8. 28.] EXTENT OF FEAR REQUIRED FOR COERCION. 39 would be against public policy to extend the defence to that kind of pressure." Apart from policy, and in regard to the actual interference with the freedom of will, the threat of the husband to kill himself, and the threat to abandon the wife seem about equivalent. The effect of the former will practically be even greater in a country like India, where widow marriages are, though allowed, not customary. 28. In England, it is also generally said that duress means that degree of constraint or danger, either quired' to constitute" actually inflicted or threatened and impend- coercion. ing, which is sufficient, in severity or apprehension, to overcome the mind and will of a person of ordinary firmness 24 . Blackstone said that the threats, to pro- duce such an effect, must be of such a character as to induce a well-grounded fear in the mind of a firm and courageous man of the loss of life or limb. In regard to the requirement of ordinary firmness and pru- dence, the Roman Law was still stricter, as it required it to be such as to be able to make an impression upon a man of courage. Gains, for instance, laid down that metum autem non vani hominisj sed qui merito et in homine constantissimo cadaf. This rule has, however, not been generally approved. Pothier con- demned it as "too rigid and not to be literally followed," add- ing that " upon this subject, regard should be had to the age, sex, and condition of the parties; and a fear which would not be deemed sufficient to have influenced the mind of a man in the prime of life and of military character, might be judged sufficient in respect of a woman or a man in the decline of life/' 35 In the United States, the question of the extent of fear has to be determined, in the main, with reference to the peculiar condition of the person affected by it. Thus Clark says that the reference to a person of ordinary firmness in this connec- tion is incorrect, and there is probably no actual decision to sustain it 23 . "The law of contracts," says Bishop in his work on contracts 27 , "considers the quality of the contracting mind, and therefore holds the apparent, yet unreal consent of a subject or timid person, or person of inferior intellect, as invalid, as that of the strongest and most independent understanding, though the latter would not have been enthralled where the former was." In Parmentier v. Pater, the Supreme Court of Oregon said : 2 * Chitty Cont., 217; 2 Greenl. Ev., 283; Mark. Juris., 369. 2 1 Evans Poth. Obi., 18. 26 Clark Cont., 357. 27 S. 719. 2 13 Or., 121. 4Q EXTENT OF FEAR REQUIRED FOB COERCION. ;s. 29. " Persons of a weak or cowardly nature are the very ones that need protection. The courageous can usually protect them- selves. Capricious and timid persons are generally the ones that are influenced by threats, arid it would be great injustice to permit them to be robbed by the unscrupulous, because they are so unfortunately constituted." It is quite a general rule, that where a party seeks to be relieved from the obli- gation of a contract on the ground of duress per masin, regard will be had to age, sex, and condition of life ; and if the threats employed were such as were calculated to deprive one indivi- duallv of his freedom of will, he would be relieved from liabi- if lity, even though they were not of sucb a character as would produce a like effect on a firm and courageous man." 29 In the case cited, Gordon, J., giving the opinion of the Supreme Court of Pennsylvania, said : " We are free to admit, that by a man of ordinary courage this fuss and fume of Jordan might have been regarded as a mere farce, and would probably have been produc- tive of a consequence no more serious than a summary and un- ceremonious ejectment of the intruder from the premises. But to this old lady, helpless as she was, and unprepared either to en- counter or deal with such sham heroics, the matter was alto- gether different, and the jury were justified in believing that she was much frightened, and that her will was so controlled thereby that the obligation which she signed was not her free and voluntary act. We are aware that neither under the rule of the civil nor common law, as formerly expressed, would there be sufficient to release Mrs. Elliott from her contract. But fortunately for the weak and timid, courts are no longer governed by this harsh and inequitable doctrine, which seems to have considered only a very vigorous and athletic manhood, overlooking entirely women and men of weak nerves. Pothier regards this rule as too rigid, and ap- proves the better doctrine, that regard must be had to the age, sex, and condition of the parties, since that fear which would be insufficient to influence a man in the prime of life and of military character, might be deemed sufficient to avoid the contract of a woman or man in the decline of life 30 . And we think the opinion of Mr. Evans expresses the doctrine which is now approved by the judicial mind, both of this country and of England, that is, that any contract produced by actual intimidation ought to be held void, whether as 29 Jordan r. Elliott, 15 Cent. L.-J., I 30 I Kvans Poth. Obi., 18. 232. S. 29.] WITHHOLDING POSSESSION OF GOODS HOW FAR DURESS. 4} arising from a result of merely personal infirmity or from cir- cumstances which might produce a like effect upon persons of ordinary firmness." The Louisiana Civil Code enacts that violence and threats to invalidate a contract must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune, but the age, sex, state of health, temper and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration 31 . The French 32 , the Belgic 33 , the Italian 34 , and the Spanish Civil Codes 35 , after speaking of the impression over a r disenable or scnsata person, add that regard should be had in the matter to the age, the sex and the condition of the person. The Egyptian Code lays down that duress, to make consent void, must be sufficiently serious to influence a reasonable person, having regard to the age, sex, and position of the con- tracting party 33 . The Indian Contract Act is silent as to the extent of fear caused, and evidently on that ground, any act or threat to commit an act falling within the definition of the term coercion given in the Act, of whatsoever character, and to whomsoever done or addressed, shall constitute coercion ; though if extreme- ly trivial, or done or addressed to a stranger, it may of course be held in any case, not to have caused the consent of a party 37 . 29, Duress in regard to goods is, in the English law, Withholding posses- still considered insufficient to vitiate con- sion of goods how far a sent. It is distinguished from duress as to duress in English law. p erson? O n the ground that the latter is a constraining force, which not only takes away free agency, but may leave no room for appeal to the law for a remedy. A man, therefore, is not bound by the agreement which he enters into in such circumstances ; while the fear that goods may be taken or injured, does not deprive of his free agency any one who possesses that ordinary degree of firmness which the law requires all to exert 88 . The reality of this distinction has been denied. For instance, in Spaids v. Barrett Thornton, J., in delivering the opinion of the Supreme Court of Illinois, said : " We cannot appreciate the differ - 31 Art. 1851. 32 s. 1111. 33 S. 1112. 3 * S. 1112. 35 S. 1267. 6 36 S. 195. 3 * Step. Com. Cont. Act, 62. 33 The Duke de Cadaval v. Collins, 4 Ad. and E., 858. 30 57 111., 289. 42 WITHHOLDING POSSESSION OF GOODS HOW FAR DURESS. [S. 29. ence. Liberty and life are justly dear to all men, and so is the exclusive right to possess, dispose of, and protect from destruction, our property. We cannot forget the fact that the desire for property is a strong and predominant characteristic of man, in organized society. An act done, prompted by this desire to preserve, and impelled by fear of the destruction of goods, is not voluntary. It is an act of compul- sion." The rule, however, has maintained its sway in England. In Skeate v. Beale 40 , Lord Denman, C. J., in delivering the judgment of the Court, considered " tlie law to be clear, and, founded on good reason, that an agreement is not void because made under duress of goods." So also in Atlee v. Backhouse* 1 , Parke, B., observed that " the law is clear, although there is some case in Viner's Abridgment to the contrary, that, in order to avoid a contract by reason of duress, it must be duress of a man's person, not of his goods ; and it is so laid down in Sheppard's Touchstone." Even in England, it is agreed, however, that a threat to withhold certain property until a certain amount is paid, is a sufficient duress to make the payment a compulsory one, for which a recovery may be had by suit. Thus, in the very case of Atlee v. Backhouse 41 , Parke, B., went on to say, that " there is no doubt of the proposition that if goods are wrongfully taken, and a sum of money is paid simply for the purpose of obtaining possession of those goods again, without any agreement at all, especially if it be paid under protest, that money can be- recov- ered back." Referring to the doctrine that a contract induced O by duress of goods is not valid, he added, " If my goods have been wrongfully detained, and I pay money simply to obtain them again, that being paid under a species of duress or con- straint may be recovered back ; but if, while my goods are in possession of another person,! makea binding agreement to pay a certain sum of money, and to receive them back, that cannot be avoided on the ground of duress." The leading case on the point, however, is, Astley v. Reynolds 42 , in which the defendant refused to return the plate pawned to him unless 10 were paid for interest, and the plaintiff paid the amount : and it was held that the amount paid to obtain the plate could be recovered ; the Court observing that it was a payment by compulsion, as the plaintiff might have such an immediate want of his goods, that the action of trover would not do his * 11 Ad. & B., 983. 1 * 2 Stra,, 915. *i 3 M. & W., 660. S. 30.] DUEESS OF GOODS IN THE UNITED STATES. 43 business, and that the maxim volenti non jit injuria would apply only, " where the party had his freedom of exercising his will, which this man had not." Tin's decision was referred to with approbation hy Lord Mansfield in the case of Smith v. Bromley 43 , in which money had been advanced by a sister of a bankrupt to induce a creditor to sign a certificate, which he refused to do without such advance ; and an action to recover back the money was sustained. In Cartwright v. Rowley**, Lord Kenyon observed that money might be recovered back in an action of assumpsit when it had been paid in consequence of coercion ; and by way of illustration referred to a case of v. Pzggott, where money had been paid to the steward of a manor for producing at a trial some deeds and court rolls, for which he had charged extravagantly ; and it was allowed to be recovered back, as it appeared that the party could not do without the deeds, and so the money was paid through necessity and the urgency of the case, and not voluntarily. In Shaw v. Woodcock 4 *, it is laid down as a general rule, that a payment made in order to obtain possession of goods or property to which a party is entitled, and of which he cannot otherwise obtain possession at the time, is a compulsory, and not a voluntary payment, and may be recovered back. This admission by the English courts of the adequacy of the duress of goods to make a payment compulsory is essen- tially inconsistent with their refusal of its adequacy to make a promise compulsory, but the conservatism of the English law has not advanced yet to its removal, and the two rules are acted upon side by side by the English Courts on the authority of ancient precedents. 30. The rule relating to the compulsory character of a pay- ment made under duress is recognized in , D " re " J,f, ods in the United States also. The ordinary rule, the United States. . ., . , . . . J .. indeed, is that every person is bound to resist an unjust demand in the first instance. To pay when he can successfully defend against it, and then sue for the money paid, is a species of frivolity, involving also a circuity of action, which the law does not countenance or encourage. This is, of course, on the presumption, that the defence against a suit for the demand will afford adequate redress. * 3 3 Dougl., 695. I ** 2Ep.,722. | ** 7 B. * Or., 73. 44 DUKESS OF GOODS IN THE UNITED STATES. [ S. 3O. Payment is held compulsory, and sufficient to justify recovery, when the defence cannot have that effect. In Cobb v. Charter^, McCurdy, J., in delivering the opinion of the court, observed : "It is safe to say that wherever money is paid on account of a necessity to obtain possession of goods illegally withheld, and where the detention is fraught with great immediate hardship or irreparable injury, the payment is held to be compulsory." This has been held invariably by the Supreme Court of the United States. Thus in Maxwell v. Griswold", it was laid down that, in order to constitute an involuntary payment, so that the money may be recovered back, it need not be made under actual violence or physical duress ; it is enough that the party pays reluctantly in consequence of an illegal demand, and with- out being able to regain possession of his property except by submitting to the payment. So also Brewer, J., in delivering the opinion of the Supreme Court in Lonergan v. Buford 48 , said : "It appears that the defendants refused to deliver any of the property without full payment. This was at the com- mencement of the winter. The plaintiffs had already paid $ 175,500, and without payment of the balance they could not get possession of the property, and it might be exposed to great loss unless properly cared for during the winter season. Under those circumstances, we think the payment was one under duress. It was apparently the only way in which possession could be obtained, except at the end of a law suit, and in the meantime the property was in danger of loss or destruction." The same view has been taken repeat- edly by the New York Supreme Court and in other States (S) . (B) Thus in Harmony v. Bingham* , the defendants refused to deliver the property without the payment of a greater sum for freight than they could legally claim. The plain- tiff protested against the payment of what he considered an illegal and extortionate charge, and finally, from the necessity of the case, and for the purpose of obtaining possession of his property, he paid the illegal demand ; and it was held thai a payment under such circumstances should not be considered voluntary. Buggies, J., said: " When a party is compelled, by duress of his person or goods, to pay monej for which he is not liable, it is not voluntary, but compulsory. Where the owner's goods are unjustly detained on pretence of a lien which does not exist, he may have such an immediate want of his goods that an action at law will not answer his purpose. The delay may be more disadvanta geous than the loss of the sum demanded. The owner, in siich case, ought not to be sub- jected to the one or the other ; and to avoid the inconvenience or loss, he may pay the money, relying on his legal remedy to get it back again. What shall constitute such duress is often made a question. Where the owner is in possession of his goods, the threat of a distress for rent, or of any other legal process, is not such duress, for the party may defend himself against such suit or proceeding. But if a party has in his possession goods or other property belonging to another, and refuses to deliver such property to that other, unless the latter pays him a sum of money which he has no right to receive, and the latter, in order to obtain possession of his property, pays that sum, the money so paid is a payment made by compulsion. In the case under consideration the property * ?2 Conn., ?53. *s 148 U. S. 589. *> 10 How, 242. *0 12 N. Y., 99, g. 30.] DURESS OF GOODS IN THE UNITED STATES. 45 The inconsistency of this rule with that of not recognizing duress of goods as sufficient to invalidate a contract, was noticed early by the courts in the United States, and led to the adoption of a different rule in regard to the withholding of goods on a contract induced by it ; and, except in Kentucky 55 and a few other states, where the English rule still prevails, most Courts regard duress of goods, under oppressive circumstances, as sufficient to avoid a contract*". Thus Gaines, A. J., in delivering the opinion of the Texas Supreme Court in Oliphant v. Markham 57 , speaking of the two rules of the English law, said : "It seems to us, they lead to an obvious absurdity. Upon principle, the position of a defendant who resists the payment of a note is as favorable as that of detained was of great value. It was at a great distance from the plaintiff's residence; the necessity of obtaining immediate possession was evidently urgent, and the payment of the freight demanded was clearly compulsory within the decisions here and in England." In Stenton v. Jerome 50 , certain stockbrokers held two United States bonds belonging the plaintiff, and threatened to sell them, unless she paid a balance claimed by them on account. The payment was said to be so far voluntary that she was not compelled by physical duress to pay it ; but it was held to be compulsory, a~. " she had great need for the bonds and could not well wait fo; 1 the slow process of the law to restore them to her, and site pai.l this balance, not assenting that it was justly due, but for the sole purpose of releasing her bonds. '' In Briyys v. Boyd 51 , a person unjustly claimed a lien on another's goods for commission or the like, and refused to deliver them, and the owner, to obtain their release, paid the sum demanded under protest, and the payment was held to be coiu- ptilsory. In Chase v. Dwlnal 52 , a raft was stopped by a boom, erected by the authority of the Government for the purpose of stopping drift timber, for which the owner of the boom might be entitled to demand and recover boomage. The owner demanded boomage for a raft, to which he was not entitled, and detained the raft until it was paid. An action for the recovery of the money back was held to lie, on the ground " that replevin would have restored the property unlawfully seized ; but to procure a writ, and an officer to serve it, would have occasioned delay, which might have subjected the plaintiff to greater loss than the payment of the money demanded. Besides, he mnst have given a bond to the officer to prosecute his suit, and he might meet with difficulty in obtaining sufficient sureties, and that the delay in bi-inging a trespass suit to ajinalc might have been attended with serious inconvenience. To this it might have been added, that the plaintiff was not bound tr> take the risk of the defendant's ability to pay the value of the raft if the plaintiff recovered in trespass. In Chandler v. Sa tiger 5Z , it was held that where a person who fraudulently and with knowledge that he had no just claim should sue process and seize the body or goods of another, and the latter to obtain a release of his person or property, should pay the demand, the payment would be compulsory and recoverable. In Wolff v. Marshall 5 *, the court said " that the conclusion deducible from the cases on the point was that a pay- ment of money upon an illegal and unjust demand, when the party is advised of all the facts, can only be considered involuntary when it is made to procure the release of the person or property from detention, or when the other party is armed with apparent authority to seize upon either, and the payment is made to prevent the seizure. " s 54 N. Y., 480. 81 56 N. Y., 293. 5a 7 Grecnl. Me., 134. ' 114 Mass., 365. t 52 }Io., '71, 55 Hazetrigg t. Donaldson. 2 M t., 445. 98 Clark Cont., 360. 57 79 Tex., 543. 46 DURESS OF GOODS IN THE UNITED STATES. [S. 30. a plaintiff who, instead of promising to pay, has actually paid the money and seeks to enforce its recovery. It would seem that, where money has been paid to obtain a release of property unlawfully withheld by the de- fendant, the want of consideration would be a sufficient reason why the action ought to be maintained ; and upon the same principle, the maker of a note given for a similar purpose ought to be able to defeat an action upon it." If there be a sufficient duress of goods " where money has been paid," said the Supreme Court of Pennsylvania, *' in White v. Heylman**, *' a fortiori is such a defence available in an action upon a promissory note extorted in the manner alleged by the defendant." In Spatd-s v. Barrett'' 9 , '' property which required especial care, had been wrongfully taken, was of a perishable nature, and rapidly going to destruc- tion. The part} having possession refused to surrender on payment of the actual indebtedness, but demanded more than double the sum due, and, in addition thereto, a release for all damages for the wrongful acts." The release was held in- valid, and Thornton, J., in delivering the opinion of the court, observed: "If money could be recovered back, under the circum- stances, why is not the release void ? It was not obtained with the consent intended by the law. It would be a scandal to a court of justice if a release given under such circumstances could not be avoided." The Supreme Court of South Carolina, 'as early as 1797, held that a contract made in order to obtain possession <>f goods unlawfully detained could not be enforced G0 . In Collins v. Wesfbury*, some negroes were seized by a person under an attachment taken out by him, and a bond was given by their owner to obtain their release at once, as he could not wait the slow process of law to obtain them ; and it was held to be invalid, the court observing that " duress of goods will avoid a contract, where an unjust and unreasonable advantage is taken of a man's necessities by getting his goods into his possession, and there is no other speedy means left of getting them back again but by giving a note or bond, or where a man's necessities may be so great as not to admit of the ordinary process of law to afford him relief." The United States Supreme Court has held the same, and in The United States v. Huckabee, Clifford, J., in deliv- 58 34 Pa., St., 142 57 111., 289. 60 Sasportas v. Jennings, 1 Bay. 470. 81 2 Bay, 20 62 16 Wall., 414. S. 30.] DURESS OF GOODS IN THE UNITED STATES- 47 ering the opinion of the Supreme Court, said : " Positive menace of destruction of goods, may undoubtedly be, in many cases, sufficient to overcome the mind and will of a person entirely competent, in all other respects, to contract, and it is clear that a contract made under such circumstances is as utterly without the voluntary consent of the party menaced as if he were induced to sign it by actual violence ; nor is the reason assigned for the more stringent rule, that he should rely upon the law for redress, satisfactory, as the law may not afford him anything like a sufficient and adequate compensation for the injury." 03 Nor is the rule restricted to the case of duress by the with- holding of goods. In Centred Bank v. Copeland, a mortgage of a mill and mill-seat was executed by a wife on account of " personal menaces and threats of her husband to destroy the property by fire, if she did not execute it"; and Cochran, J., in delivering the opinion of the Supreme Court of Maryland, said : " The execution and acknowledgment of the mortgage appears to have been induced by harshness and threats, .and the exercise of an unwarrantable authority, so excessive as to subjugate and control the freedom of her will, the aid of this court to support and enforce its provisions against her must be refused." The rule extends also to transfers of property, other than contracts in the strict sense of that term. In Adams v. Schiffer e5 , a settlement was held to be void on the ground of duress., and Elbert, J., in delivering the opinion of the court, said : " Con- tracts made and money paid under duress of goods have been held, the former void and the latter recoverable, in many well- considered cases both in England and America. The decisions are not uniform in their expression of the law, but they all rest upon the proposition that the duress of property was such as to render the contract or payment involuntary. It seems to be well settled that where a party has possession or control of the property of another, and refuses to surrender it to the control and use of the owner, except upon compliance with an unlawful demand, a contract made or money paid by the owner under such circumstances, to emancipate the property, is to be regarded as made under compulsion." 63 Baker v. Morton, 12 Wall., 158. I 6 * 18 Md., 305. 05 11 Colo., 15. 48 ILLEGALITY OF ACT HOW FAK NECESSARY FOR DURESS. [S. 31. 31. Asa general rule, an net or threat to do an act can Illegality of act constitute duress, only if that act is illegal, done "or "threatened If a person does or threatens nothing which how far necessary to \ }e nas no t a legal right to do, there should constitute duress. be n() Duress. " A threat of imprisonment," says Sir Frederick Pollock, " is not duress, unless the imprison- ment would be unlawful" 66 . Thus in Biffin v. Bignel 91 , the threat was of sending one's wife to a lunatic asylum, and it was held not to constitute duress, " as it was not of any thing con- trary to law; at least not so to be understood." In Bacon's Digest 63 , the doctrine is laid down that, " where a person is illegally restrained of his liberty, by being confined in a common jail or elsewhere, and, during such restraint, enters into a bond or other security to the person who causes the restraint, he may avoid the same for duress of imprisonment. But if a man be imprisoned by order of law, the plaintiff may take a feoffment of him, or a bond for his satisfaction, and the deliverance of the defendant, notwithstanding the imprisonment, for this is not by duress of imprisonment, because he was in prison by course of law; for it is not accounted in law duress of imprisonment, but where either the imprisonment or the duress that is offered in person, or at large, is tortious and unlawful, for executio juris non habet injuriam" The question has arisen generally in case of an arrest or im- prisonment in execution of a decree or on a criminal charge. Thus in Smith v. Monteith 99 ^ the action was on a promise to pay a sum of money in consideration of the promisor's dis- charge out of custody in a former action, in which he had been arrested on plaintiff's application ; and it was held not to be a case of duress, as Pollock, C.B., said: "for aught that appear?, that arrest was legal, and the party was in lawful custody." The rule of the German law appears to be the same Thus Eccius, in his Preussisches Privatrecht says 70 : " Muss die Drohung oJme ein dem Dfohenden gegenilber dem Bedrohten znstehendes RecM hierzu, und in diesem Sinne wider rechtlich ein iibel androhen. (0) (C) The threat must be without there being a sufficient right to it in the threatening person over the person threatened, and in this sense, an illegal evil threatened. 66 Poll. Cent., 577. I es 2 Bac.. 402. 6 * 7H. &N., 877. <"> 13 M. & W.. 427. o P. 156. S. 31.] ILLEGALITY OF ACT HOW PAR NECESSARY FOR DURESS. 49 So Pothier said : "the violence which leads to the rescission of a contract, should he an unjust violence, adversus bonos mores and the exercise of a legal right can never be allowed as a violence of this description; therefore a debtor can have no redress against, a contract which he enters into with his t? creditor, upon tlie mere pretext that he was intimidated by the threats of being arrested, or even of his being 1 actually under arrest, when lie made the contract, provided the creditor had a right to arrest him." 71 The French law appears to be a little more free at present in this matter. Thus M. Rogron, in commenting on s. 1111 of the French Civil Code relating to violence, says that, it -HP. s'applique evidemment pas a Vemploi regulier des voles de droit legali s. A plus forte raison en est-il ainsi de la menace d"* employer hs votes legates, a mmns toutefois que I'emploi ou la menace d\m? vois de droit legale rfaient eu pour but d'arriver a un resultat injuste. As to the Italian law, Giorgio Giorgi savs 72 : " La violenza deve esvere ingiusta. Se fosse giustct, Vautore delle minacce arrebbe asercitato un diritto: e poiche, 'qui iure suo utitur . nsminem laeditj sarebbe inconcepibile un rimedio, che ne paralizzasse 98 4 Giff., 638. 54 ILLEGALITY NOT NECESSARY FOR DURESS IN INDIA. [S. 33. settle, or give the note now in suit, that was a use of the process wholly unauthorized by law, and the note thus procured is void." In the Louisiana Civil Code, it is enacted that " if the vio- lence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract " w ; but it is added that " the mere forms of law to cover coercive proceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to a contract, will invalidate it." An illustration of this rule is given, by providing that an arrest without cause of action, or a demand of bail in an unreasonable sum, or threats of such pro- ceeding, invalidate a contract made under their pressure. 33. Apparently the same comprehensive view will be taken In r . t of duress in the Indian Law. Where the In- Illegality of act done or threatened dian renal Lode is in lorce, every act forbid- how far necessary to den by it will of course be unlawful, and prac- constitute duress in tie-ally the Code isin forcein allBritish India. The explanation attached to the definition of the term duress, expressly enacts that the same acts will consti- tute duress even where the Indian Penal Code is not in force, and the acts therefore are not necessarily illegal. The defini- tion also provides that " :he unlawful detaining, or threatening to detain, any property " is duress. The word " unlawful " may no doubt be so construed as to qualify " threatening," but on a strict construction of the language, the detention threaten- ed need not necessarily be unlawful. The question has, how- ever, never been judicially determined. In Band a All v. Bans- pat Singh, 1 * 1 the particular question did not arise as the arrest, in execution of a decree was held to constitute duress sufficient to avoid a bond given for the amount of the decree, on thegrouud that the decree, was not only ex parte, but void for want of juris- diction. The decision in Ranganayakamma v. Alwar Setti 102 supports the broader construction, as the judges said that they could not " say that obstructing the removal of a corpse by the deceased's widow or her guardian unless she made an adoption and signed a document, is not an unlawful act or not an act such as is defined by section 15 or 16 of the Indian Contract Act." In British Burma, lawful imprisonment in Siam was distinctly held to constitute duress, on the ground that ' im- 9 S. 1856. I 101 I. L. R., IV All., 35:?. i S. 1857. io I. L. R., XIII Mad., 224. S- 32.] UNDUE INFLUENCE. 55 prisunment in a country where there is no settled system of law or procedure, and where the judge is invested with ; rhitrary powers, is duress of a wholly different kind, the I risoner neither knows what will be the length of his impri- sonment, nor what amount of pain and misery lie may be put to ; all is indefinite, and therefore the apprehension acting on the mind of a man in such a situation would he infinitely greater than if he were imprisoned in a country like England, u here the law is settled and cannot be exceeded hy thejudge." 34. Coercion contemplates, however, only physical acts. Corresponding moral considerations also TT J * 13 1 ^ e influence as prevent a consent being- free. They are nttecting freedom of . , . ,, . , i * j consent? to varied in their character to admit of an exact description, and may generally be said to {< include any improper or wrongful constraint, machination, or urgency of persuasion, whereby the will of a person is over empowered, and he is induced to do or forbear from an .act, which he would not do, or would do if left to act freely." 103 On account of this very comprehensiveness, they are usually grouped under a particular head, and designated " undue influence "; which has been pithily described as that 4 ' which destroys free agency, and constrains the person whose act is brought in judgment to do what is against his will, and what he would not have done if left by himself." m Sir Frederick Pollock, in his work on Contracts, says : " In equity there is no rule defining inflexibly what kind or amount of com- pulsion shall be sufficient ground for avoiding a transaction, whether by way of agreement or by way of gift. The ques- tion to be decided in each case is whether the party was a free and voluntary agent. Any influence brought to bear upon a person entering into an agreement, or consenting to a disposal of property, which, having regard to the age and capacity of the party, the nature of the transaction, and all the circumstances of the case, appears to have been such as to preclude the exercise of free and deliberate judgment, is considered by courts of equity to be undue influence, and is a ground for setting aside the act procured by its employ- ment." 105 Dr. Holland says that undue influence " consists in acts which, though not fraudulent, amount to an abuse of the power, which circumstances have given to the will of one individual over that of another." 102 Moung Shoay Alt v. Ko Byaw, | 10 * Haydock v. Haydock, 33 N. J. Eq., L. R., Ill I. A., 61. 494. 103 2 Abb. L. Diet., 615. l05 P. 579. i6 Holl. Jur., 237. 56 UNDUE INFLUENCE. [S. 34. So also Dr. Bishop says, 107 that " any complications in which a party may find himself involved, whereby his act of contract- ing is not that of a free agent, may, at least in equity, be avail- ed of by him to avoid it, as against those by whose procure- ment it was made." Mr. Clark says, 108 that " Influence obtained by modest persuasion, and arguments addressed to the under- standing, or by mere appeals to the affections, cannot properly be termed ' undue influence ' in a legal sense I09 ; but influence obtained by flattery, importunity, superiority of will, mind, or character, or by what art soever that human thought, ingenuity, or cunning may employ, which would give dominion over the will of a person to such an extent as to destroy the free agency, or constrain him to do against his will what he is unable to refuse, is such an influence as the law condemns as undue lin ". Pomeroy considers undue influence as a moral, social, or domestic force exerted upon a party, controlling the free action of his will. 311 The statutory definitions of undue influence are more definite and compact. Thus the California Civil Code enacts 11 ' that undue influence consists (1) in the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over hirr, of such confidence or authority, for the purpose of obtaining an unfair advantage over him ; (^) in taking an unfair advantage of another's weakness of mind ; or (3) in taking a grossly oppressive and unfair advantage of another's necessities or distress. .Recent text-writers have also adopted similar descriptions of the expression. Thus even Clark 113 describes undue influence as consisting: (#) in the use by one in whom confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; (ft) in taking an unfair advantage of another's weakness of mind; and (c) in taking a grossly oppressive and unfair advantage of another's necessities and distress. In British India also, undue influence is defined so as to include every such treatment of a person whose mind is en- feebled by old age, illness, or mental or bodily distress, which does not amount to coercion, and yet makes that person con- sent to that to which he would not otherwise have consented; and every use of confidence or authority by a person in whom 107 Bish. Cont., 290. no g c hofield r. Walker, 58 Mich.. 9K. 103 Clark Cont., 3fi5. l ll II. Pom. Eq. Juris.. I?f9. 109 Hale v. Cole. 31 W.Va., 576; Beit h 112 S. 1575. >: Beith, 76 Iowa, 601 : Sturtevant ll3 Clark Cont., 36 1. r. Sturtevant. 116 111., 340. S. 35.] GENERAL NOTION OF FRAUD. 57 confidence is reposed by another, or who holds a real or apparent authority over that other, for the purpose of obtaining an advan- tage over that other which, but for such confidence or authority, he could not have obtained m . This enumeration of circums- tances constituting undue influence is far from complete; spe- cially as English courts of equity have, since their early days, been busy with a recognition as undue influence of various circumstances of moral hardship; and undue influence is one of the chief branches of the exclusive jurisdiction of such courts. 35. The term "fraud" is used in a very comprehensive sense in the English and the Indian Law. Its po- General notion of lftr not i on con sists of deception, and ordi- fraud as affecting , , j n . . , freedom of consent. nar y lexicographers define it as "deception deliberately practised with a view to gaining an unlawful or unfair advantage." 115 Even Wharton,in his Law Lexicon, defines it as deceit in defrauding or endeavouring to defraud another of his right, by artful device, contrary to the rule of honesty. This was the early notion of fraud in the English law, the notion in the Common law, as not affected and widened by the practice of the courts of equity. Thus in Hay- craft v. Creasy, 1M Le Blanc said that " by fraud he understood an intention to deceive, whether from an expectation of advan- tage to the party himself, or from ill-will towards another." This is exactly what Roman lawyers meant by dolus. Thus Gallus Aquilius defined dolus as Quam aliud simulatur et aliud at/ifur. Servius more fully described it as machinationem quandam, alterius decipiendi causa, cum aliud simulatur et aliud agitur. This definition was considered too general, and Labeo pointed out ; Posse sine dissimulatione id agi, ut guis circum- veniatur', posse et sine dolo malo aliud agi, aliud simulari, sicuti fadunt qui per ejus modi dissimulationem deserviant et tuentur vel sua, vel aliena. He defined it as omnis calliditato, fallacia, machinatio ad circumveniendum, fallendum, deci- piendum alterum adhibita. Ulpiaii and other Roman jurists approved of that definition. Speaking of that definition, M. Bedarride, in his work on Dot and Fraud, says 117 : Elle repondait parfaltement a V ides qiCon psut se faire du dol et des caracteres le constituant . En effet, le contours de manceuvres deloyales et d'un prejudice pour la partie contractante, determine nettement la nature du dol et son objet, indique le double fondement de V action ouverte a celui qui en a etevictime. 114 S. 16, Act IX of 1872. I 110 2 East, 108. us Vide Webster's Dictionary. ll? 1,12. 58 GENERAL NOTION OF FRAUD. [3. 35. The term fraud derived from a word denoting simple pre- judice was at first used in a still more restricted sense, to denote a similar, but less artful, conduct directed rather against courts or third persons than against the other party to a transaction. To use the words of M. Chardon, it descendait jusqud des cas dans lesquels I'intentionna rien de coupable, mats qui presentent un dommage par levenement, ce que les docteurs appellaient fraus non in consilio sed eventu. n French jurists often refer to that distinction between fraud and dol. Thus M. Bedarride says 119 : Sans doute, le dol et la fraude ont des caracteres communs, subissent dans leur recherche V empire de principes analogues, produisent des effets identlques. Mais il y a entre eux des differences notables dans leur nature, dans leur origine, sonvent meme dans leurs resultats. Ainsi, le dol ne. pent existtr sans Vemploi de manoeuvres, imputables a 1'une d?s parties, on executees dans son inter et par un tiers. La fraude, an contraire, ne reside le plus souvent que dans V execution d'vne convention licite et juste, elle n'exiye aucune manoeuvre; elle esf, dans certain cas, concertee entre toutes les parties contractantts. Le dol vide essentiellement le contrat. Lafraude, meme con- venue^ ria souvent aucune influence sur la validite et, conse- quemmetit, sur T execution a donner d la convention. Aux+i, verrons nous que la plainte en frauds n'est pas toujours per- mise t tandis que cslle en dol ne saurait, dans aucun cas, ctre refusee d la partie lesee. So also Ohardon, in his Traite da Dot, 120 says: Ohacun de ces deux mots a cependant un sens propre auquel il est conr enable de se fixer, pour concei-oir des idees plus saines sur les questions qui s'y rattachent. Le dol est Vart de tromper la personne qiCon dcpouille. La fraude est celui de violer les lois en trompant les magistrate ou les tiers par la forme des actes. Dans quelques circonstances il y a dol sans fraude ; dans d'autres, il y a fraude sans dol, et tres-souvent il y a dol et fraude. Par example, il n\j a que dol quand, par des artifices, un individu est determine d donner sa chose ou d la vendre a vil prix. H n'y a que fraude quand Vusurier, de concert avec Vinforiune qu'il mine, couvre ses rapines par une convention Ugale en apparence. 11 y a dol et fraude lorsqu* un incapable obtient par des perfidies, non-seulement une liberality immeritee, mais encore son deyui&ement sous la formj d'un contrat oner eux. us Ch. Dol. et Fr. 3. | 1 Bed. Dol. et Fr., 9, 120 I. 4. S. 36.] FRAUD IN ENGLISH LAW. gg 36. In the English law, however, there is no term corres- ponding to dol t and a great deal of the diffi- culty attaching to the expression " fraud," is due to the circumstance of its doing duty for both dol and fraude of the French Law. The greatest extension in the sense of that expression has been made, however, by the action of the Courts of Equity, which have released the expression entirely from the trammels of deli- berate deception and moral turpitude. Thus in Harman v. Fisher, fraud was said to be an act unwarranted in law, to the prejudice of a third person, and not that crafty villainy or grossness of deceit to which it was applied in common Ian- guage. In the case of Green \. Nixon, 122 Sir John Komilly observ- ed that " fraud implies a wilful act on the pnrt of any one, whereby another is sought to be deprived, by unjustifiable means, of what he is entitled to." Similarly, in Earl of Aylesford v. Morris, Lord Sel borne, L. C., said: " Fraud does not here mean deceit or circumvention ; it means an unconscientious use of the power arising out of these circumstances and conditions." In England, fraud is, therefore, denned at present, as a statement creating in a person a false belief as to any circum- stances, a false representation of fact, made with a knowledge of its falsehood, or recklessly without belief in its truth, with the intention that it should be acted upon by the complaining party, and actually inducing him to act upon it 134 . Similarly, Dr. Holland defines 125 it as " the intentional determination of the will of another to a decision harmful to his interests by means of a representation which is neither true nor believed to be true by the person making it ;" with the further obser- vation that '' the essentials of a fraudulent repre- sentation are that it is (1) untrue in fact, (2) made with knowledge of its untruth, or without belief in its truth, or with recklessness as to its truth or falsehood , (3) made for the purpose of inducing another to act upon it." The same view is taken in the United States also. Dr. Porneroy says 120 that "every fraud, in its most general and fundamental conception, consists in obtaining an undue advan- tage by means of some act or omission which is unconscientious or a violation of good faith in the broad meaning given to the 121 Lofft, 472. 123 23 Bcav., 535. 123 8 Ch. A p., 490. i** Anson Cont., 165. i 23 Holl. Juris., 207. 120 II Pom. Eq. Jur.. 1224. 60 FRAUD IN INDIAN LAW. [S. 37. term by equity. Furthermore, it is a necessary part of this conception that the act or omission itself, by which the undue advantage is obtained, should be willful ; in other words, should be knowingly and intentionally done by the party; but it is not essential in the equitable notion, although it is in the legal, that there should be a knowledge of and an intention to obtain the undue advantage which results." Clark, in his work on Contracts, 127 describes fraud as " a false representation of a material fact, or nondisclosure of a material fact under such circumstances that it amounts to a false re- presentation, made with knowledge of its falsity, or in reckless disregard of whether it is true or false, or as of personal know- ledge, with the intention that it shall be acted upon by the other party, and which is acted upon by him to his injury." Thus, in Kirby v. Ingersoll, 12S the Michigan Supreme Court said that " by the term 'fraud,' the legal intent and effect of the acts complained of is meant. The law has a standard for measur- ing the intent of parties, and declares an illegal act prejudicial to the rights of others a fraud on such rights, although the parties deny all intention of committing a fraud." This was quoted with approval by McWhorter, C. J., in delivering the opinion of the Supreme Court of Florida in Logan v. Logan, in which, in speaking of a mortgage, he said, that, if the mortgage "in effect is a fraud upon the right of the creditor, the motives of the parties are of no consequence." In delivering the opinion of the Supreme Court of Pennsylvania in Mitchell v. Kintzer^ 13 Coulter, J., said, that " it may safely be averred, that all deceitful practices in depriving or endeavouring to deprive another of his known right by means of some artful device or plan, contrary to the plain rules of common honesty, is fraud." 37. In the Indian Law, the term is used in the same com- prehensive sense. It is not restricted to a La ^ raud " suggestion, as a fact, of that which is not true, by one who does not believe it to be true," but extends also to "any of the following acts commit- ted by a party to a contract, or with his connivance, or by his agent (1) the active concealment of a fact by one having knowl- edge or belief of the fact ; 127 p. 324. I 129 22 F10./561. i2s 1 Harr. (Mich), 172. 13 5 Pa. . St., 216. g. 38.] ABSENCE OP FREE AND FAtR CONSENT. Q\ (2) a promise made without any intention of perform- ing it ; (3) any other act fitted to deceive ; (4) any such act or omission as the law specially declares to be fraudulent. 131 Even silence as to facts likely to affect the willingness of a person to enter into a contract is declared to be fraud, if the circumstances " are such that regard being had to them, it is the duty of the person keeping silence to speak, or the silence itself is equivalent to speech." Nor do these acts constitute fraud, only when they are committed with an intent to deceive another party to the contract, but also when the intent is to induce him to enter into the contract. The Indian Law has, however, grouped some of the cases fall- ing within what in the English Law is usually called legal or constructive fraud, as separate from fraud, under the head of 'misrepresentation,' which is denned in the Indian Contract Act, I3a to mean and include (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true ; (2) any breach of duty which, without an intent to de- ceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claim- ing under him; (3) causing, however innocently, a party to an agree- ment to make a mistake as to the substance of the thing which is the subject of the agreement. 38. Neither coercion or undue influence, npr fraud can pre- Abscnce of free and venfc tne creation of, or destroy, or even in- fair consent makes validate, a contract induced by a consent contracts only void- affected by them. Fraud is often said to 11 vitiate consent, but it does not negative it; and a contract is not necessarily void, on the ground of its hav- ing been induced by a consent vitiated by fraud. Nor has coercion or undue influence any higher effect. The Indian Contract Act actually enacts that, when consent to an agree- ment is caused by coercion, undue influence, fraud or mis- 131 S. 17 Act. IX of 1872. I " S. 16 Act. IX of 1872. ABSENCE OF FREE AND FA1K CONSENT. [S 38. representation, the agreement is a contract voidable at the option of the party whose consent was so caused ; and that, if the consent is caused by fraud or misrepresentation, that party may even insist on the performance of the contract, so that he may be placed in the position in which he would have been if the representation made had been true. Further, the contract will not even be voidable, when the consent is caused by misrepresentation or fraudulent silence, if the party, whose consent was so caused, had the means of discovering the truth with ordinary diligence. 133 The English law is the same. Under that also a contract, induced by the abovementioned causes of consent, is not void ; but only voidable at the option of the party injured by the contract. Sir Frederick Pollock broadly says: "that where the consent of one party to a contract is obtained by the other, under such circumstances that the consent is not free, the contract is voidable at the option of the party whose consent is so obtained. It is quite clear that it is not merely void" 134 . In the United States, the Louisiana Civil Code enacts 135 , that ' engagements made through error, violence, fraud or menace, are not absolutely null, but are voidable by the parties who have contracted under the influence of such error, fraud, violence or menace, or by the represent- atives of such parties." A deed taken under duress has often been held to be void- able. 136 In Bush v. Brown 1 Downey, J., in delivering the opinion of the Supreme Court of Indiana, said that duress " while it does not render the contract absolutely void, will yet enable the party so under duress to avoid it at his option." (0] Almost every text-writer has laid down the same rule. 1 Clark says " that a contract is not void, because it was entered into under duress, but, as in the case of fraud, is merely voidable at the option of the injured party, and stands unless he sees fit to avoid or rescind it. 140 (C) In Fairbanks v. Snow; 138 , Holmes, J., in delivering the opinion of the court, said that it was well-settled, " that where, as usual, the so-called duress consists only of threats, the contract is only voidable," It is not to be inferred from this that the court considered that a different rule would apply when the duress did not consist of threats but of acts. The case under consideration being one of threats, it was not necessary to consider or pronounce upon any other point. 133 S. 19, Act IX of 1872. 13 * Poll. Cont., 67(3. 135 S. 1881. 136 Miller v . Minor R. Co., 98 Mich., 163; Oregon Pac. R. Co. v. Forrest, 128 N.Y., 83 ; Sornbor- ger v. Sanford, 34 Neb., 489. "7 49 lad., 695. "S 145 Mass., 153. 139 Ans. Cont., 177. 140 Clark Cout.,3G3. S. 38.1 ABSENCE OF FREE AND PAIR CONSENT. 63 With regard to undue influence also, it has been repeatedly laid down that it renders a contract voidable at the option of the injured party. 141 The contract stands, however, unless avoided. 142 Anson observes that under influence are voidable and not void". 143 contracts and gifts made In regard to fraud, the character of its effect is still clearer. It has been repeatedly laid down that fraud renders a contract voidable and not void. 144 Kerr in his work on Fraud 145 says, that "a contract or other transaction, induced or tainted by fraud, is not void, but only voidable at the election of the party defraud- ed. Until it is avoided, the transaction is valid, so that third parties, without notice of the fraud, may, in the meantime, acquire rights and interests in the matter which they may enforce against the party defrauded. " A contract which is void has no effect whatever, and, if it has any effect, it cannot be void. It is settled that a person, who has been induced by fraud to enter into a contract may waive the fraud, and hold the other party to his bargain, even recovering damages for the fraud, though he may not be able to rescind the contract, if he delays for an unreasonable time, or acts upon it with knowledge of the fraud; and that, as a rule, he will not be permitted to rescind, unless the. other party is placed in statu quo. Even bond- fide purchases from a fraudulent vendee acquire a title which may not be defeated by the original vendor's exercise of his right to rescind. Thus where a bargain has been made by the owner of the chattel with another, by which any property is transferred to that other, the property actually passes, though the bargain has been induced by fraud. This was clearly laid down by the Exchequer Chamber in Glough v. London and North-Western Ry. Co., 1415 in which Mellor, J., in delivering the opinion of the court, said : ''We agree completely with what is stated by all the Judges below, that the property in the goods passed from the London Co. to Adams by the contract of sale; the fact that the contract was induced by fraud did not render the contract void, or prevent the property from passing ; but merely gave the party defrauded a right, on discovering the fraud, to elect whether he would continue to treat the contract as bindjng, or would disaffirm the contract and resume his property .... We think that, so long as he has made no election, he retains the right to determine it either way, Holl. Juris., 237; Clark Cont., 364. 37 Bncyc. Law, 494. Anson Cont., 182. ** Dariesr. Harness, 10 C. P., 166, 145 P. 5. i* 6 7 Ex., 34. 64 ABSENCE OP FEES AND FAIR CONSENT. [S. 38. subject to this, that, if in the interval, whilst he is deliberating, an innocent third party has acquired an interest in the property ; or if, in consequence of his delay, the position even of the wrongdoer is affected, it will preclude him from exercising his right to rescind." It is clear from this, that a contract, induced by force or fraud, is not void, but only voidable, and that, even its rescission does not make it void as against bond-fide purchasers from the defrauding party. The same rule is recognized in the United States. Thus Clark in his work on Contracts says " that fraud does not render the contract absolutely void, but renders it voidable at the option of the party injured. 147 " In Baird v. Mayor, 148 Ruger, C. J., in delivering the opinion of the court, observed, that " It is the duty of a party who has been induced to enter into the making of an executory contract for the purchase of personal property through fraud, if he desires to avail himself of that objection, to act upon the first- opportunity and rescind it by repudiating its obligations, " and said : " such a contract is not void, but is simply voidable at the option of the party defrauded, and requires affirmative action on his part to relieve himself from its obligations." It is no doubt sometimes said that coercion, undue influence and fraud render a contract void ab initio ; but this is merely a careless use of words. The word " void " is often used for voidable, 149 though there is a material difference between the two. Thus in the Eli- zabethan Statute (27 Eliz., ch.4.), for the protection of purchasers, certain conveyances of lands, tenements or other heredita- ments are declared to be " utterly void, frustrate, and of no effect," and still it is quite settled that they are only voidable as against persons who should have purchased them before or might purchase them afterwards, or their legal representatives. The same construction has also been put on 13 Eliz., ch. 5, which was enacted for the protection of creditors, and declared certain conveyances, &c., "to be clearly and utterly void, frustrate, and of none effect" generally and not only as against any person or persons, and still it has long been quite settled that such transactions are not void, but only voidable as against the creditors affected prejudicially by them. Similarly, it is laid down in the Civil Code of France that violence and dot are a cause of the nullity of the contract in- duced by them 150 ; but s. 1117 lays down that such a contract i*7 Clark Cont,, 347. | i* 9 Poll. Cont., 53. i*s 96 N. Y., 598. iso S. S. 1113 & 1116. 8. 39.] GENERAL EFFECT OF MISTAKE ON CONSENT. (55 n'est point nulle de plein droit, but only gives lieu a une action en nullite ou en rescision. The Italian Civil Code has not got any such explanatory provision, but the clauses l relating to the nullity of a contract on the ground of violenza and dole are construed in the same manner. Speaking of the rights of third persons, Giorgio Giorgi says that that is the chief reason for which le moderne legislazioni hanno considerate la violenza come semplice vizio di consenso che produce invaliditd con azione da esperimentarsi dentro un breve periodo di tempo. a In the German Law also, in case of transactions inter vivos, er- zwunyen abgegebene Erkldrung wird durck nachtragliches Aner- kenntniss im Zustand der Willensfreiheit ruckw'drts giltig? (h*) Eccius, in his Preussisches Privatrecht further says: Da die ErUiirung dcs Betrogenen beim Rechtsgesch'dft unter Lebenden nur nach seinem Willen anfechtbar ist, sofolgt; dass der Betrogene auch bei ihr bekarren, sie ah giltig betrachten Icann (i) 4 . 39. Non videntur consentire qui erant. Nule a enim voluntas err ant is est. This must be general ly General effect of i , -, v < mistake on consent. correct also, as a consent is only in regard to an act, and. the error referred to also must be in regard to that act, or in regard to such constituents of it as may be material in the particular branch of law to which the matter under consideration may relate. The term error, however, is a very comprehensive one. It has been described as una difformita fra le idee della nostra mente e For dine delle cose (j) 5 . Jurists look at error from different points of view, con- templating different incidents of the act erred about as its essentials, and therefore taking different views of its legal effect. Thus it has been said by Eccius, in his work on Preussisches Privatrecht, that an error is die unwahre Vorstellung von den Wirkungen des Inhalts der Erkldrung (&) 6 . As a natural result (3) The modern legislations have considered violence as simply a vice of consent, which produces invalidity by an action to be tried within a short period of time. (h) A declaration extorted by force will, through subsequent ratification while the will is free, become valid again. (/) A declaration of the deceived person in legal transactions inter viros is void- able only according to his will ; so does it follow that the deceived person can also insist that the transaction may be deemed valid. (j) An unconformity between the ideas of our mind and the order of the things. (A) The untrue conception of the effectiveness of the contents of the declaration (of consent). i Ss. 1111 &1115. a IV., 91. 3 II. Preus. Priv., 1 7. II., 162. IV Giorg. Tec. Obbl., 47. II. 158. 66 MISTAKE, EEEOE, AND IGNORANCE. [S. 40. of that, he says, that Der Wille ist ferner nicht frei icenn der Wollende sich irrt (7). On the other hand, Sir Frederick Pollock says : *' Mistake as such has no legal effects at all. When an act is done under a mistake, the mistake does not either add anything to or take away anything from the legal consequences of that act, either as regards any right of other persons or any liability of the person doing it, nor does it produce any special consequences of its own; unless knowledge of something which the mistake prevents from being known, or an intention necessarily depending on such knowledge, be from the nature of the particular act a condition precedent to the arising of some right or duty under it 7 ." He even says that "mistake does not of itself affect the validity of contracts at all ;" though it " may be such as to prevent any real agreement being formed" 8 . Parties to a contract sometimes do not mean the same thing, or, while meaning the same thing, one or both form untrue conclusions as to that thing or as to the object of the contract. In such a case, there is no actual concurrence of willk, and therefore no real consent to form a con tract, and no contract. It is not necessary that a mistake should have this effect in every case. There are cases, however, in which it has that effect, and reference to those cases will be made later on. 40. The word " error " is often identified with "mistake," and thus distinguished from " ignorance." It is Mistake, error, and sometimes held to be a general word includ- ignorance how far in ^ both mista k e and ignorance. Mistake is, different. ,. n J./Y? f however, essentially different trom ign- rance. 9 Ignorance, it has been repeatedly said, is not mistake. The distinction has been chiefly adverted to in regard to the ig- norance and the mistake of law. Johnson, J., in distinguishing the two in the opinion of the court in Lawrence v. Beaubien 10 , observed that " the former is passive, and does not presume to reason, and unless we were permitted to dive into the secret recesses of the heart, its presence is incapable of proof; but the latter presumes to know when it does not, and supplies palpable evidence of its existence." The case of Culbreath v. Cul- ^ affords a good illustration of the difference between (Z) The will is further not free, when_the person willing is mistaken. i Poll. Cont., 424. s Poll. Cent., 422. 9 Fletcher v. Toilet, 5 Ves., 14; Penny v. Martin, 4 John. Ch., 568. 10 2 Bailey, 623. 11 7 Ga., 64. S.40.] MISTAKE, EKROR, AND IGNOKANCE. 7 the two. Nisbet, J,, in delivering the opinion of the court in that case, said: "Ignorance does not pretend to knowledge, but mistake assumes to know. Ignorance may be the result of laches which is criminal; mistake argues diligence, which is commend- able. Mere ignorance is no mistake, but a mistake always in- volves ignorance, yet not that alone. If the plaintiff the ad- ministrator had refused to pay the distributive share in the estate which he represented to the children of his intestate's deceased sister, upon the ground that they were not entitled in law, that would have been a case of ignorance, and he would not be heard for a moment upon a plea that, being ignorant of the law, he is not liable to pay interest on their money in his hands. But the case is, that he was not only ignorant of their right in law, but believed that the defendants were entitled to their exclusion, and acted upon that belief, by paying the money to them. The ignorance, in this case, of their right, and the belief in the right of the defendants, and action on that belief, constitute the mistake. The distinction is a practical one, in this, that mere ignorance of the law is not susceptible of proof. Proof cannot reach the convictions of the mind, un- developed in action; whereas, a mistake of the law, developed in overt acts, is capable of proof like other facts." On the other hand, Walker, J., in delivering the opinion of the court in Gwinn v. Hamilton observed that "a distinction has been taken in South Carolina, Georgia, Kentucky and Maryland between mistakes of law and ignorance of law, and there are some English decisions which have been regarded by some as supporting the distinction. But this distinction has been gene- rally repudiated, as resting upon a mere imaginary diiference, or as too subtle and refined for practical application. The great weight of authority, both in England and America, maintains the rule we have laid down above." In Champlin v. Laytin Branson, J., observed that there was no distinction between an ignorance and a mistake of the law, while Senator Paige observed that the distinction made was proper. Strictly speaking, ignorance is the absence of some idea, the not knowing of something that exists, while a mistake is the existence of a wrong idea, the knowing of something which does not exist. Looked deeply, however, they are the different aspects of the same thing, each implying the not knowing of the real state of things. The Indian Contract Act thus uses the word mistake only, and the Indian Penal Code the word ignorance * 2 29 Ala., 233. | 13 18 Wend., 407. 68 NO CONTRACT EVEN IF MISTAKE OP ONE PARTY. [S. 41. only. Their legal effect, is, however, the same. So also Bigelow in an article in the Laic Quarterly Review, 1 * after observing that mistake,as contrasted with ignorance, implies some notice and consideration of the law, says " the terms are commonly used as synonymous ; or rather the term mistake has nearly usurped the other's place." In German law also, Das Falschwissen und das Nichticissen stehen sick in Hirer Bedeutung fur das Recht gleich 15 41. To prevent the formation of a contract, it is not necessary that both the parties should be mistaken. Mistake even of one m i A / MI party may prevent form- . There can be no concurrence of wills, even ation of contract. if one party is under a mistake. The Roman Law did not require for the in- validity of a contract that the error should be bilateral. Giorgio Giorgi in his work on the Theory of Obligations, after observ- ing that, says : Tanto merita scusa chi ha sbagliato solo t purche non sia stato vittima di un errore imperdonabile, quanta la merita chi ha sbagliato in compagnia deWaltro contraente. E d'altronde la legge scusa eerie volte V err ore sulla persona: or a questa specie di errore come potrebbe essere bilaterale. 1 * (Z) Under the English Law, a contract may in some cases be held invalid on account of the mistake of one of the parties. 17 The Indian Law of Contracts lays it down, however, generally, as a necessary condition of the invalidity of a contract, that both the parties must be under a mistake. This view is not quite without authority, and though not generally approved, is of course, so far as it goes, not likely to lead to any practical difficulties, particularly as this provision of the Act will apply chiefly to cases in which there is a contract, and the mistake is only in substantial, and such as may invalidate the contract. And in such cases, the contract even under the English Law will be invalid only, if the error is common to both partes. 18 "In fact," Dr. Bishop says, 19 "that as a general rule, the mistake which will render a contract void or voidable must be mutual." In any case, it is seldom that one party may be under a mistake, (A) Mistake and ignorance are the same in their signification for purposes of law. (I) He who has alone made a mistake, if he be not the victim of an unpardonable error, merits excuse as much as be who has made a mistake in company with the other contract- ing party. And as on the other hand, the law excuses sometimes the error concern- ing the person : how can this species of error be bilateral. ** I. 298. " IV. 82. i PolL Cont., 42, 43,476-477. 17 Paget v. Marshall, 28 Ch. D., 263. ! Poll. Cont., 465. Kerr on Fraud, 623. i Bish. Cont., 273. S. 42.] FACTS MISTAKE OF WHICH AFFECTS CONSENT. Qg without the other party being cognizant of it. And when this other party is innocent, it will generally be too hard on him to allow the mistaken party to allege a mistake, and have the contract set aside on account of it. A due regard to the interests of the innocent party who thought that there was a valid contract, and made all his dispositions in reliance on that contract, might well require that the contract should not be set aside except in cases in which there w r as a mistake on both the sides. In such cases, if one of the parties must suffer, it is only right that the suffering must be on the side on which there is a mistake. Nor is there any hardship in this. Law looks more to the expression of consent than to the consent itself. Even when there is no actual concurrence of wills, the parties or either of them are often not at liberty to allege their mistake, on the ground of estoppel or of public policy, and must suffer for its consequences. 42. As observed above, mistake in certain cases has the Nature of facts, mis- effect of negativing or vitiating consent, take of which may affect and thus of affecting the existence or consent. validity of a contract. Mistakes, both of fact and law, may have this effect, but there are differences in the operation of the two; and reference will be made first to the former, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none. 20 The nature and effect of a mistake on contracts was well explained in the case of Hurd v. Hall 21 , in which Dixon, J., in delivering the opinion of the court said : " A mistake of fact is ordinarily said to take place, either when some fact, which really exists, is unknown, or some fact is supposed to exist which really does not exist. In legal parlance it has a much more enlarged signification than a mistake of law, and extends to and includes the case of a party who, through mere ignorance of the existence or non-existence of a material fact is induced to do an act or enter into a contract injurious to himself, where, if he had been informed of the existence or non-existence of such fact, he would not have performed such act, or made such contract. Ignorance of the existence or non-existence of a material fact, precludes the idea that the party, at the time of the transaction, should have been influenced by it, for it is impossible that the mind should be Loins. Civ. Code, Art., 1821. | 12 Wis., 112. 70 FACTS MISTAKE OF WHICH AFFECTS CONSENT. [S. 42. moved by that of which it knows nothing. This ignorance of facts must be excusable, that is, it must not arise from the intentional neglect of the party to investigate them. The rule which formerly prevailed, that if a party might, by the exercise of reasonable diligence, have ascertained the facts, he would not, on the ground of ignorance or mistake, be relieved from his contract, has of late been very much relaxed. The later cases establish the doctrine that whenever there is a clear bond fide mistake, ignorance or forgetfulness of facts, the contract may, on that account, be avoided." Broadly speaking, there is no contract at all, where the mis- take is in regard to the nature or the terms of the agreement itself, in regard to the person with whom the agreement is made, or in regard to the identity or existence of the object of the agreement. When the mistake is in regard to any other matter, there may be a contract, but the mistake will in certain cases render the contract void. What these cases are, has not been absolutely settled in any system of law, nor do they appear to admit of a general settlement. The Indian Contract Act lays down that the mistake of fact to invalidate the agreement must be as " to a matter of fact essential to the agreement." This does not solve the difficulty, but only throws it a step further as to what is so essential to an agree- ment ; and this must be determined with reference to the peculiar circumstances of each case. The provisions of the Continental Codes are also couched in general language, and do not throw much light on the matter. The French Civil Code thus lays down that the error is a cause of the nullity of the contract, only when it tombe sur la substance tneme de la chose qui en est Vobjet 22 . The Italian Civil Code lays down that an error di fatto non produce la nullita del contratto, se non quando cade sopra la sostanza delta cosa che ne forma Voggetto. 23 (m) The Spanish Civil Code provides that the error to vitiate consent ought to bear on the substance of the thing which forms the object of the contract, or on the conditions which have given room to its formation 24 . The Louisiana Civil Code 25 is a little more definite, and provides that an error to invalidate a (m) Of fact produces the nullity of the contract, only when it relates to the substance of the thing which forms the object of it. aa 8. 1110. I a* s. 1266. 93 8. 110. . s Art., 1123. S. 42.] FACTS MISTAKE OF WHICH AFFECTS CONSENT. 71 contract must be in some point, which was a principal cause for making the contract. The Egyptian Civil Code goes still fur- ther and enacts that a mistake renders the consent void, when it affects the main description under which the subject-matter of the contract has been regarded in the contract 26 . The Ger- man Civil Code has chalked out an altogether new line and is still more vague. Thus S. 119 of the Code enacts: Wer bei der Abgabe einer Willenserkliirung iiber deren Jnfialt im Irrthume war oder eine Erkldrung dieses Inhalts ilberhaupt nicht abgeben wollte, Jcann die Erkldrung anfechten, wenn anzunehmen ist, dass er sie bei Kennt- niss der Sachlage und bei verstdndiger Wilrdigung des Falles nicht ubgegeben haben wurde. A Is Irrthum iiber den In- halt der Erkldrung gilt auch der Irrthum iiber solche Eigen. schaften der Person oder der Sache, die im Verkehr ah wesentlich angesehen werden (a). And S. 120 adds : Eine Willens- serU'drung welche durch die zur Uebermittelung ver- wendete Person oder Anslalt unrichtig ilbermittelt wor- den ist, kann unter der gleichen Voraussetzung ange- fochten werden wie nach 119 erne irrtJiilmlwh abgegebene WillenserUdrung (b\ As a general principle in the abstract, an error to be able to form a ground for the invalidation of a contract deve avere avuto tanto peso sull 1 animo del contraente medesimo, da render e certo che esso non avrtbbe concluso il contratto se avesse conosciuta la veritd?\ii) This principle does not appear, however, to have been adopted in any positive system of law. The extent of its actual application is determined somewhat differently by judges in different countries. The illustra- tions given in the Indian Contract Act 23 of matters of faot essential to the agreement do not throw any valuable light on the character of the relation indicated by the word " essen- tial. They all refer to the existence of the subject-matter of the agreement, and therefore do not help to indicate what (a) He who in making a declaration of will was mistaken regarding the contents of it, or did not wish to make a declaration with such contents, may claim to avoid it, if it is to be supposed that he would not have made it, if aware of the state of things, and if rightly able to appreciate the case. An error regarding such qualities of the person or thing as are considered important in transactions is also to be considered a mistake regarding the contents. (b) A declaration of will which has been wrongly transmitted by a person or in- stitution employed in transmitting it, may be claimed to be avoided in the same manner as a wrongly made declaration according to S. 119. () Must have had such weight over the contracting party himself, as to render it certain that he would not have entered into the contract if he had known the truth. 26 S. 195. | " IV, Giorg. Teo. Obbl., 69. " S. 20 Act IX. of 1872. 72 MISTAKE AS TO NATUEE OF TRANSACTION. [S. *3. matters would be considered essential. The determination of what matters of fact are essential to the agreement, must, therefore, ex necessitate rei as in the case of the French and the Italian Codes, proceed, in the main, on general consi- derations. It is beyond the scope of this treatise to discuss all the cases in which a mistake, as to these matters will, or will not, in- validate the contract ; nor is it necessary to refer to the various conditions in which, and the various restrictions under which, a mistake will have that effect. Reference will be made briefly under these three heads respectively to the general principles governing the effect of mistake on consent in regard to contract, so far as they have a bearing on questions relating to the con- sent in the criminal law. 43. A mistake as to the nature of the transaction prevents the concurrence of wills, and is of rare a ^lT occurrence. There can, however, be no transaction. . . ' contract where there is such a mistake. Thus in Thoroughgood' 's case, 29 it was held that "if an illiter- ate man have a deed falsely read over to him, and he then seals and delivers the parchment, that parchment is nevertheless not his deed." In a note to that case in Fraser's Edition of Coke's Reports, it is suggested that the doctrine is not confined to the condition of an illiterate grantor, and a case in Keilway's Reports, p. 70, is cited in support of this observation. In that case, the grantee himself was the defrauding party ; but the position that, if a grantor or covenantor be deceived or misled as to the actual contents of a deed, the deed does not bind him, is supported by many authorities, and recognized by the Court of Exchequer in the case of Edwards, v. BrownJ The same is held in the United States, and a deed was in Me Ginn v. Tobey 91 held void, as in fact, not the deed of the person by whom it purport- ed to be executed, on the ground that he had signed it believ- ing it to be the counterpart of a lease which he had executed, and '* never meant to execute a deed, and never knew that he had executed one." In Clinev. Guthrie, 32 Buskirk, /., said " It is well settled by authority and on principle, that the party whose signature to a paper is obtained by fraud as to the char- acter of the paper itself, who is ignorant of such character, and has no intention of signing it, and who is guilty of no negligence as > 2 Co. Rep., 9*. I 31 62 Mich., 252. 1 Cr. & J., 312. s 42 Ind., 227. S. 43.] MISTAKE AS TO NATURE OF TRANSACTION. 73 in affixing his signature, or in not ascertaining the character of the instrument, is no more bound by it than if it were a total forgery." The Louisiana Civil Code 33 enacts that " error as to the nature of the contract will render it void," the nature of the contract being *' that which characterises the obligation. Thus if the party receives property, and from error or ambi- guity in the words accompanying the delivery, believes that he has purchased, while he who delivers intends only to pledge, there is no contract." The principle is held to apply in the case of negotiable instruments even as against bond fide holders. The inquiry in such cases goes back of all questions of negotiability or of the transfer of the supposed paper to a purchaser for value, before maturity and without notice. It challenges the origin and existence of the paper itself; and the proposition is to show, that it is not in law or in fact what it purports to be. " Negotiability pre-supposes the existence of the instrument as having been made by the party whose name is subscribed ; for, until it has been so made and has such actual legal existence, it is absurd to talk about a negotiation, or transfer, or bond fide holder of it. That which in contemplation of law, never existed as a negotiable instrument, cannot be held to be such ; and to say that it is, and has the qualities of negotiability, because it assumes the form of that kind of paper, and thus to shut out all inquiry into its existence, or whether it is really and truly what it purports to be, is petitio principii begging the question altogether." 34 Thus, in Foster v. MacKinnon, 35 the acceptor of a bill of exchange had induced a person to endorse it by telling him that it was a guarantee. It was held that the bill did not bind him even in the hands of a bond fide purchaser for value. Byles, J., in delivering the judgment of the Court upon a rule nisi for a new trial, said : " It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a, nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man 33 Art. 1841. | s * Walker v. Egbert, 29 Wis., 194. 35 4C. P., 704. 10 74 MISTAKE AS TO NATURE OF TRANSACTION. [S. 43. afterwards signs ; then, at least if tbere be no negligence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not .accompany the signature ; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended." This decision was quoted with approval and followed in Whitney v. Snyder, 36 in which Talcott, J., in delivering the opinion of the New York Supreme Court, said : *' A bond fide holder of commercial paper, for value and before maturity, is protected in many cases against defences which are perfectly available as between the original parties, such as that the sig- nature was obtained by false and fraudulent representations, that a blank bill or acceptance has been filled up for a greater amount than the party to whom it was delivered was authorized to in- sert. But in all these cases the party intended to sign and put in circulation the instrument as a negotiable security. Where this is the case, he is bound to know that he is furnishing the means whereby third parties may be deceived, and innocently led to part with their property on the faith of his signature, and in ignorance of the true state of facts. But, while this is a rule ot great convenience and propriety, there are, and must be, some limits to its application, some defences as to which even a bond fide purchaser purchases at his peril. The familiar case of a note declared void by statute, as in the case of usury, furnishes an illustration." The same has been held in several other cases in the United States. 37 And the same rule has been held to apply even when the mistake is not as to the nature of the instrument, but only as to the amount or other details of it. Thus, in Griffiths v. Kellogg, 38 a lightning rod agent induced a woman to sign a promissory note for a greater sum than she owed by reading the instru- ment to her as of the less and real sum of her agreed obliga- tion, and the Court said : " The note in suit was as little hers as if the transaction between her and the lightning-rod man had not taken place, and he had forged the note." 88 2Lans., 477. 31 Kagel v. Totten, 59. Md., 447. Sohuylkill Co. v. Copley, 67 Pa. St., 386. De Camp v. Hamma, 29 Ohio, 4G7. Trombly v. llicard, 130 Mass., 259. Corby . Weddle, 57 Mo., 452. Detwiler v. Bish, 44 lud., 70, Baldwin v. Bricker, 86 Ind., 221. Hewett v. Jones, 72 111., 208. Schaper r. Schaper, 84- 111., 603. Van Brunt v. Singley, 85 111., 281. Easterly v. Eppelsheimer, 73 Iowa, 230. bowers r. Thomas, 62 Wis., 460. 39 Wis., 290. S. 44.] MISTAKE AS TO PARTIES TO A CONTRACT. 75 44. Similarly a mistake as to the identity of a contracting party may avoid the contract, but only ties^o a co'rlct *"" where the ^entity of the person with whom a contract is made is a matter of substantial concern, where there is in contemplation a definite person with whom the contract is intended to be made. It is only in such a case that the personality of a party may be held to be essential to the contract In most cases, no such person is in contem- plation, " and then a mere absence of knowledge caused by com- plete indifference as to the personality of the other party cannot be considered as mistake." As enacted in the Louisiana Code, **in onerous contracts, such as sale, exchange, loan for inter- est, letting and hiring, the consideration of the person is by law generally presumed to be an incidental cause, not a motive for a contract," though there are some exceptions to the rule. Sometimes, however, the intention of a contracting party is to create an obligation between himself and another certain person, as for example in case of gifts, and contracts of beneficence;, marriage, compromise, agency, partnership, and bailments. In such cases, if that intention fails to take its proper effect, it. cannot be allowed to take the different effect of involving him without his consent in a contract with some one else. 40 The reason for the avoidance of the contract in such a case is that a man, in entering into a contract, looks to the credit and character or to the reputation and skill of the person with whom he supposes he is contracting. 41 The principle has often been recognized in England as well as in the United States, 42 Thus in Humble v. Hunter** a con- tract with a person was held not to be with his father, Denman, C. J., observing that "you have a right to the benefit you contemplate from the character, credit and substance of the party with whom you contract." Kerr lays down the rule as follows : 44 "Where the consideration of the person with whom a man thinks he is contracting does not at all enter into the contract, and he would have been equally willing to make the contract with any person whatever as with him with whom he thought he was dealing, a mistake of identity will not prevent the formation of the con- tract. But when the consideration of the person with whom n man is willing to contract enters as an important element in the contract, as if it be a sale on credit where the solvency * Art. 1830. | * 2 Mitchell v. Lapage, Holt. N. P., * Poll. Cont., 449. 253; Boulton v. Jones, 2 H. & N., 564. ** Boston Ice Co. r. Potter, 123 12 Ad. & El. N. S., 3101. Mass., 28. ** Kerr. Frand & M., 485. 7(5 MISTAKE AS TO PARTIES TO A CONTRACT. [S. 44. of the buyer is the chief motive which influences the assent of the vendor, or where a purchaser buys from one whom he supposes to be his debtor and against whom he would have the right of set off, a mistake as to the person dealt with pre- vents the contract from coming into existence for want of assent." Besides the person who thus substitutes himself is never present in the mind of the other party, and the latter, therefore, does not consent to a contract with him. AVhere a man imitated another's signature, and thereby induced persons to supply him with goods under the belief that they were supplying the person whose signature w r as imitated, it was held that there was no contract with the person so procuring the goods. " Of him," said Lord Cairns in Gundy v. Lindsay , 45 "they knew nothing, and of him they never thought. With him they never intended to deal. Their minds never, even for an instant of time rested upon him, and as between him and them there was no consensus of mind which could lead to any agreement or contract whatever. As between him and them there was merely the one side to a contract, where, in order to produce a contract, two sides would be required." In the United Statesi the Civil Code of Louisiana has broadly enacted that " error as to the person, with whom the contract is made, will invalidate it, if the consideration of the person is the principal or only cause of the contract." 46 The French Civil Code similarly provides that it is not a cause of nullity when it tombe que sur la personne avec laquclle on a intention de con- trader, a mains que la consideration de cette personne ne soft la cause prin cipale de la convention* 1 The Italian Civil Code is to the same effect. 48 The Spanish Civil Code likewise provides that the error concerning the person will invalidate the contract only when it has that person for a principal object. 49 An error concerning a party to a contract is a generally understood to refer to the individuality of that party. Jn certain systems of law, it is construed more liberally, and held also to include an error concerning the personal quality of a party. Thus in the Louisiana Civil Code, 50 it is enacted that "error as to the quality or character in which the party acts invalidates a contract, when such a quality or character is the principal cause of the agreement : thus, a compromise with one, who is supposed to be the heir of a deceased creditor of the party contracting, is void, if he be not really the heir." So * 5 3 App. Cas., 465. *s Art. 1110. * Art. 1834. * 9 Art. 1266. *' Art. 1110. so A r t. 1838. S. 45.] MISTAKE AS TO IDENTITY OF OBJECT OF CONTRACT. y also contracts, which could only be made by persons possess- ing certain powers, either delegated by contract, given by virtue of any private or public office, or vested by the opera- tion of law, are also void, when there is error as to the char- acter, quality or office under color of which such contract was made. Contracts entered into under forged or void powers or assignments, or with persons without authority assuming to act as public or private officers, are thus governed by that rule. 1 Similarly Giorgio Giorgi in his work on the Theory of Obligations, 2 after putting forward that view, says, by way of example, that a Tizio who makes a contract with Oaio, believ- ing him to be a merchant, or a son of Sempronio, or believing him to be a citizen of Italy while he is a subject of France, commits an error concerning the person. He adds, however, that a mistake concerning the quality of a person usually has a much less importance than a mistake concerning his indivi- duality, as it is difficult that a contract may be concluded with a person in consideration of his personal quality. 45. A mistake as to the object of a contract will avoid it Mistake as to the iden- i n ra ost cases. When the mistake is in tit}' of the object of regard to the identity of that object, contract. there will be no concurrence of wills, and therefore no consent. Such a mistake was designated by the Romans as in corpore> and by the Italians as ostatlva, and is inconsistent with the existence of the consent which is of the essence of contract. The principle is, however, of quite a general application. To make a valid contract, the minds of the parties must meet, and both must intend to enter into the engagement expressed by the terms of the contract ; and the covenants in which the contractors mistake one another's meaning, the one meaning to treat of one thing and the other of another, are null through the want of knowledge, and of their consent to one and the same thing. 3 Such mistake arises generally where the contract is in reference to a thing of a certain designation, and one of the parties thinks he is contracting for one thing that answers the designation, while the other party thinks it is something else which also answers that designation. In the Digest, lib. 18, tit. 4, De contra- hendd Emptione, leges, 9, 10, 11, it is laid down as a general rule, that where the parties are not at one as tc the subject of the contract there is no agreement, and that this applies where the parties have misapprehended each other as to the corpus, 1 Louis. Civ. Code, Art. 1840. | a IV., 70. 3 Domat's Civil Law, S. 234. jO MISTAKE AS TO EXISTENCE OF OBJECT OF CONTRACT. [g. 46. as where an absent slave was sold and the buyer thought he was buying Pamphilus and the vendor thought he was selling Stichus, in which case there is 110 bargain, as there is an error in corpore. It is in accordance with the elementary principles of the English law of contracts also, that "if the defend- ant was negotiating for one thing and the plaintiff was selling another thing, and their minds did not agree as to the subject-matter of the sale, there would be no contract by which the defendant would be bound." 4 Thus in Raffles v. Wichdhaus, 5 a person agreed to buy a cargo of cotton " to arrive ex Peerless from Bombay," and there were two ships of that name, and the buyer meant one and the seller the other ; and it was held that there was no contract, and that the buyer was not bound to accept a cargo which, though it came " ex Peerless from Bombay, " did not come on the vessel of that name which was present to his mind when he made the agreement. In Cutts v. Gueldf a sale of a judgment of a certain person was held void on account of a mistake as to the subject-matter of the sale, as what was really intended to be purchased was a tanning company judgment belonging to W in which that person had no interest, and which like all tanning com- pany judgments was well known as of doubtful value and to be sold for only a nominal price. Dwight, C., in delivering the opinion of the court, said : " It is as though A was a bailor of a horse in the constructive possession of B, a bailee, and C made a proposition to B to purchase it as belonging to A, by indicating certain marks upon it which neither the bailor nor bailee remembered. Let it be further assumed that the bailee signed a bill of sale as having a special property in the animal, and that it turned out contrary to the understanding of all parties that the animal, possessing the specified marks, really belonged to B, and that while meaning to aid in the sale of A.'s horse, and being so supposed by C to act, B had really sold his own. Would that be a sale? Do the minds of the parties meet in such a case ? " 46. A mistake as to the existence of the object of a con- tract also avoids the contract, as is evi- d nt fr m the illustrations Attached to contract. S. 20 of the Indian Contract Act. There is, however, a full concurrence of wills Kyle r. Kavanagh, 103 Mass., 356. | a 2 H. & C., 906. 57 N. Y., 229. g. 46.] MISTAKE AS TO EXISTENCE OF OBJECT OF CONTRACT. 70 in such a case, and therefore no absence of consent. There is no contract, not because of the absence of consent, but be- cause of the non-existence of the object of the contract. In such a case, the parties intend the purchase and sale of a subsisting thing', and imply its existence as the basis of their contract, which, therefore, constitutes the very essence and as if it were, an implied condition of the obligation of their contract. The consequential impossibility of the performance of the contract is deemed to prevent its very creation. Thus in Strickland v. Turner* the sale of a life annuity was held void, as before the sale, the life had dropped and the annuity come to an end unknown to both the vendor and the pur- chaser. In Hitchcock v. Giddings,* a remainder in fee ex- pectant on an estate tail had been sold, but the sale was held invalid, as before the sale a recovery had been suffer- ed unknown to the parties, chiefly on the ground that a ven- dor was bound to know that he actually had that which he professed to sell. In Alhn v. Hammond* the parties had en- tered into a contract in which H who had been prosecuting a certain claim, agreed to pay A. who had been acting as his agent, ten per centum on all sums which he should recover up to eight thousand dollars, and thirty-three per cent, on any sum above that as commission. It was found afterwards that before the contract was entered into, the claim of A had been allowed, and so there remained no occasion for the further services of A and the contract was held to be void as having been ''entered into through the mistake of both parties," and if H were held liable to pay A's demand unde rthe contract, '* it would be without considera- tion." The same principle is held to apply where the subject-mat- ter has not ceased to exist in nature, but to belong to the vendor ; because in such a case, so far as the contract is con- cerned, it may be deemed as non-existent. Thus in Couturier v. Hastie a contract for the sale of a cargo of corn was held void, on the ground that such a contract " plainly imported that there was something which was to be sold at the time of the contract and something to be purchased ;" whereas the object of the sale had ceased to exist by reason of having been before the contract sold to another person. The result will be the same even if the property sold was not the vendor's for 7 7 Exch., 208. I 11 Peters, 63. 3 Dan. Rep., 1. 5 H. L. C., 673. gO MISTAKE AS TO SUBSTANCE OF OBJECT OF CONTRACT. [S. 47. any other reason; 11 as, for instance, if it belonged to the purchaser himself before the sale, though the parties were not aware of the purchaser's right. 12 Thus if A buys an estate of B, to which the latter is supposed to have an unquestionable title, and it turns out upon the investigation of the facts unknown at the time to both parties, that B has no title (as if there be a nearer heir than B, who was supposed to be dead, but is, in fact, living) ; in such a case equity would relieve the purchaser, and rescind the contract. 13 So also where a party entered into an agreement with another to take a lease of what in fact was his own property, both parties being under a mistake as to their respective rights, the agree- ment was set aside. 14 In Ross v. Armstrong the plain- tiff, by her deed, released to the defendant the title to half the lease under the mistaken belief that she had an indefeasible title to the residue, the parties being alike ignorant of the existence of the superior title in a third party ; and the deed was set aside, as it was clear that it would not have been executed but for the mistake. 47. The invalidating effect of mistake on a contract is not Mistake as to the snb- restricted to an error in corpore. Even stance of the object of ail error in substantia or materia, which contract. ma y generally be said to be a mistake con- cerning some essential quality of the object of the agreement 16 , in some cases vitiates the consent and avoids the contract. In case of such a mistake the subject-matter of the agreement is specifically indicated. Both parties mean precisely the same individual thing. There is, in other words, a complete concensus in corpore. The juristic act of the agreement is complete, and as such valid and binding. In the great majority of juristic acts, as for example, traditio^ pledge, depositum, commodatum, an error in substantia is, like any other motive, immaterial, as far as the legal validity of the act is concerned. In certain cases, however, and where there is a bilateral contract, aperson who becomes :i party to such a contract, under the influence of an excusable error in substantia, may impeach the transac- tion on the ground of that error, in virtue of the bond fides which governs all such transactions. 11 Broughton r. Hutt, 3 De G. & J. 501. 18 Bingham v. Bingham, I Ves. Sen., 126. " Story Eq. Jnr., 141. 14 Cooper r. Phibbs, 2 E. & IT. App., 149. Jones v. Clifford, 3 Ch. D., 779., i 25 Tex. Supp., 354. i Sohm's Jnst., 136, (Ledlie). S. 47.] MISTAKE AS TO SUBSTANCE OF OBJECT OF CONTRACT. gj_ There is a considerable difference of opinion as to what errors may be considered as in substantio; the ordinary instances of such mistake referred to by Roman lawyers being those of a gilt or copper vessel for one of solid gold, of vinegar for wine, or of a female slave for a male one. Generalizing the cases in the Roman law of sales, Savigny lays down that " when the difference in quality between the thing bought and that which the purchaser intended to buy is such as to put the one in a different category ofmerchandise from the other, then the error is fatal to the contract." Labeo, Trebatius, Marcian and some other jurists were inclined to go further in extending the effect of mistake, as, for example, in the case of the sale of old clothes for new ; but the high authority of Ulpian was against them, and appears to have finally prevailed, and, according to the conception of consent, here advanced, justly so. The Civil Codes 1T of France and Italy having declared that a mistake concerning the substance of the object of a contract will make it null, there has been a considerable discussion in those countries as to the exact signification of the word substance. In its most restricted sense, it was taken to refer only to the qualities essential ex natura rei, as in the cases quoted from the Roman lawyers. Some enlargedthe conception of the term, to the essential qualities ex pacto, comprehending rorigine, la forma, la derivazione 9 purchapparisca, cJiefu questa la qualita in vista della quale le parti s'indussero a contrattare. 13 (0) Larom- biere Troplong, Accollas considered that the pact should be explicit, and expressly designated the qualities that would be considered as substance. Marcade, Labroiie and others held that the pact might be tacit. The criterion of a pact is now generally considered as far from adequate. Demolombe considered that the quality would be substantial when it should be describ- ed rather with a substantive than with an adjective, alleging, for example, that "being of gold or silver" would be a sub- stantial quality, but " being of good or bad gold " would not be so. Pothier says: 19 " Error annuls the agreement, not only when it affects the identity of the subject, but also when it affects that quality of the subject which the parties have principally in contemplation., and which makes the substance of it. ^There- fore if, with the intention of buying from you a pair of silver candlesticks, I buy a pair which are only plated, though you (o) The origin, the form, the derivation, provided it appears that that was the quality in view which induced the party to contract. 17 S. 1110. | is IV. Giorg. Teo. Obi., 60. is I. Evans. Poth. Obi., 12. 11 82 MISTAKE AS TO SUBSTANCE IN ENGLISH LAW. [S- 48. have no intention of deceiving me, being in equal error your- self, the agreement will be void, because my error destroys my consent." It will, of course, be otherwise, if the error only affect some accidental quality of the thing which was not in the contemplation of the parties. The theory in favor at present is that there is no general and absolute criterion, but tutlo dipendere dalle circostanze del fatto, la cui valutazione e rimessa. alV arbitrio prudente del cfmd- ice ; * (p) and the alleged price of the thing, the destination given to it by the contract, the condition of the contracting party, and a thousand other circusmtances of fact can often manifest, not less clearly than words, what was the intention of the parties, and open the mind of the judge by convincing him of the co-operation of the substantial error. In this view, la natura fisica delta cosa contrattata ; la sua forma, V origins o la derivazione sua ; anche taluna di quelle qutd.it a ordinariamente secondarie, ma eccezionalmente decisive secondo V intenzione dei contraenti, possono acguistare il car alter e giuri- dico di sostanza della cosa all* effetto di aprire Tadito alia nuUitd per vizio di consenso. 21(fl) 48. In the English law also, a mutual mistake as to the nature or fundamental qualities of the Mistake as to subs- v , j , i tance in English law. subject-matter, may avoid the contract, if it is such as goes to the whole sub- stance of the agreement, and renders the subject-matter con- tracted for essentially different in kind from the thing as it actually exists. 22 Thus Sir Frederick Pollock says : " A material error as to the kind, quantity, or quality of a subject- matter which is contracted for by a generic description, may make the agreement void, either because there was never any real consent of the parties to the same thing, or because the thing or state of things to which they consented does not exist or cannot be realized .... Sometimes, even when the thing which is the subject-matter of an agreement is specifically as- certained, the agreement may be avoided by material error as to some attribute of the thing. For some attribute which the tiling in truth has not may be a material part of the descrip- (p) All depends on the circumstances of fact, the estimation of which is left to the wise discretion of the judge. (g) The physical nature of the thing contracted for, its form, origin or derivation, and also any other such qualities as are ordinarily secondary, but exception ally decisive according to the intention of the contracting parties, can acquire the judicial character of the substance of the thing with the effect of opening the door to nullity on account of a vice of consent. 20 IV. Giorg. Teo. Obbl., 61. ~ ~~j i IV. Giorg. Too. Obbl , 61. 22 Clark Cont., 298. S. 48.] MISTAKE AS TO SUBSTANCE IN ENG-LISH LAW. 3 tion by which the thing was contracted for. If this is so, the thing as it really is, namely, without that quality, is not that to which the common intention of the parties was directed, and the agreement is void. An error of this kind -R-ill not suffice to make the transaction void, unless it is such that according to the ordinary course of dealing and use of language the difference made by the absence of the quality wrongly supposed to exist amounts to a difference in kind; and the error is also common to both parties. " 23 Kerr also observes that "where there has been some common mistake as to some essential fact, forming an induce- ment to the contract, whether it be a mistake as to the sub- ject-matter of the contract, or the price, or the terms, that is, where the circumstances justify the inference that no con- tract would have been made if the whole truth had been known to the parties, the contract is voidable at the election of either of the parties ;" 24 but " mistake in matters which are only incidental to and are not of the essence of a transaction, and without, or in the absence of which it is reasonable to infer that the transaction would nevertheless have taken place, goes for nothing." 23 The practical difficulty in all these cases is to determine whether the mistake or misapprehension is as to the substance of the contract, going, as it were, to the root of the matter, or only to some point, even though a material point, an error as to which does not affect the substance of the whole consideration. 26 A good illustration of this difficulty occurred in Reg v. Hehir? 1 in which the ques- tion arose incidentally in regard not to a contract, but to the transfer of possession. In that case, a 10 note had been given under the impression that it was only a 1 note, and Andrews, J., thought that the mistake was one of quality or value of an ordinary chattel which could receive no effect. He was " wholly unable to agree with the proposition that a man cannot take and be in lawful possession of a thing which he does not know the quality or value of, and believes to be of a different quality or value from its real quality or value." Madden, J., on the other hand, treated the mistake as one of identity. In his dissentient judgment, he said : " The chattel transferred had no intrinsic value. What is present in the mind on the delivery of a bank note is not the paper, per se, 23 Poll. Cont., 462,465. 1 20 Kennedy v. Panama Mail Co., 2 Q. a * Kerr Fraud & M., 523. B., 587- 28 Kerr Fraud & M., 478. (1895) 2 I. R, 709. 34 MISTAKE AS TO SUBSTANCE IN ENGLISH LAW. [S. 48 but the money which it represents, and into which it is convertible. It would take some argument to persuade me that one sovereign is the same identical thing in rerum naturd as a pile of ten sovereigns, and I think the notes by which they are represented are essentially different also. The case would appear plainer if exchange were carried on here, as in some countries, by means of shells, or precious stones, each essentially different in nature as well as in conventional value, and if one of these stones had been mistaken for another. But looking at the substance and reality of the transaction as present to the minds of both parties, I think mistake between a 10 note and a 1 note is one of precisely the same character A consent given, a contract entered into, or an act done, under, and in consequence of such a mistake (as to the identity of a thing) can have no legal consequences whatever." The decision of the case turned on quite another point ; and neither view appears to have been right, and the mistake was apparently one of substance. In Thornton v. Kempster, 29 a broker employed both by seller and buyer, negotiated the sale of hemp, but by mistake delivered to the defendant a sale-note describ- ing the hemp sold as * Riga Rhine,' and in that given to the plaintiff as St. Petersburgh clean hemp, and it was held that the difference in the description went to the substance of the contract, and there was no contract. To take an instance of quality, iuJosling v. Kingsford the sale of oxalic acid was held void even after the use of some of it by the purchaser, as it was, on analysis afterwards, found to be che- mically impure. So also in Azemar v. Casella, 30 the sale was of cotton according to sample which was of long- staple Salem, and ^the cotton offered for delivery was Western Madras, which was inferior in quality and required for its manufacture machinery different from that used for the former, and it was held that there was a difference in kind, which vitiated the contract. The same rule is recognized in the United States. (J?) In Louisiana, the Civil Code while recognizing that error as to (F) A different view has sometimes been enunciated. Thus in Hecht v. Batcheller, sl Morton, C. J., in delivering the opinion of the Supreme Court of Massachusetts, observed, " It is a general rule that, where parties assume to contract, and there is a mistake as to the existence or identity of the subject-matter, there is no contract, because of the want as 5 Taunt., 786. I 3 2 C. P. 431. 2 9 13 C. B., N. n., 447. 3i 147 Mass., 335. S. 48.] MISTAKE AS TO SUBSTANCE IN ENGLISH LAW. Q5 any quality of the object of the contract which is the principal cause of making the contract will invalidate it, makes a distinction between an error as to substance, and as to some substantial quality. It thus enacts, that "there is error as to the substance, when the object is of a totally different nature from that which is intended. Thus, if the object of the stipulation be supposed by one or both the parties to be an ingot of silver, and it really is a mass of some other metal that resembles silver, there is an error bear- ing on the substance of the object. The error bears on the substantial quality of the object, when such quality is that which gives it its greatest value. A contract relative to a vase supposed to be of gold, is void, if it be only plated with that metal." 32 This distinction is not definite, however, and has not been adopted in practice. The general rule that a mistake as to the quality of the object of the contract may avoid the contract was the basis of the decision in Sherwood v. Walker in which the owners and the purchaser of a blooded cow believed that she was barren, and under that belief it was sold for a small sum ; but before delivery it was discovered to be with calf, and therefore worth a large sum for breeding purposes. The majority of the Supreme Court of Michigan held that the mistake or misapprehension of the parties went to the whole substance of the sale, and avoided it. Morse J., in delivering the opinion of the majority, observed that " it must be considered as well settled that a party who of the mutual assent necessary to create one ; so that, in the case of a contract for the sale of personal property, if there is such mistake, and the thing delivered is not the thing sold, the purchaser may refuse to receive it, or if he receives it, may, upon discovery of the mistake, return it, and recover back the price he has paid. But to produce this result, the mistake must be one which affects the existence or identity of the thing sold. Any mistake as to its value or quality, or other collateral attributes, is not sufficient if the thing delivered is existent, and is the identical thing in kind which was sold. 3 * " The observation in its general form was ultra vires, however, as the question in the case was only in regard to the sale of a promissory note, the makers of which were found by the parties soon after the sale to have made an assignment for the benefit of their creditors, and the court said, that that " did not extinguish the note, or destroy its identity. It remained an existing'note, capable of being enforced, with every essential attribute going to its nature as a note which it had before. Its quality and value were impaired, but not its identity. The parties bought and sold what they intended, and their mistake was not as to the subject-matter of the sale, but as to its quality." The decision was therefore only as to the quality of the note affected not being suoli, that a mistake in regard to it could affect the validity of the sale. Most people would have considered that the mistake was really not as to any quality of the note, but as to the motives for the sale of it. At all events, the case is not an authority for the broad proposition laid down by the judge who delivered the opinion of the Court . 32 Art. 1843, 1844 and 1845. 33 66 Mich., 568. 3 * Spurr v. Benedict, 99 Mass., 463 ; Bridgewater Iron Co. v. Enter- prise Ins. Co., 134 Mass., 433. 86 MISTAKE AS TO SUBSTANCE IN ENGLISH LAW. [S. 48. has given an apparent consent to a contract of sale may refuse to execute it, or he may avoid it after it has been completed, if the assent was founded or the contract made upon the mistake of a material fact ; such as the subject-matter of the sale, the price, or some collateral fact materially inducing the agreement; and this can be done when the mistake is mutual. 33 If there is a difference or misapprehension as to the substance of the thing bargained for, if the thing actually delivered or received is different in substance from the thing bargained for and intended to be sold, then there is no contract; but if it be only a difference in some quality or accident, even though the mistake may have been the actuating motive to the purchaser or seller, or both of them, yet the contract remains binding." Referring to the facts of the particular case before him, he add- ed : " It is true, she is now the identical animal that they thought her to be when the contract was made ; there is no mistake as to the identity of the creature. Yet the mistake was not of the mere quality of the animal, but went to the very nature of the thing. A barren cow is substantially a different creature than a breeding one. There is as much difference bet- ween them for all purposes of use as there is between an ox and a cow that is capable of breeding and giving milk. If the mutual mistake had simply related to the fact whether she was with calf or not for one season, then it might have been a good sale; but the mistake affected the character of the animal for all time, and for her present and ultimate use. She was not, in fact, the animal, or the kind of animal, the defend- ants intended to sell or the plaintiff to buy. She was not a barren cow ; and if this fact had been known, there would have been no contract. The mistake affected the substance of the whole consideration; and it must be considered that there was no contract to sell, or sale of, the cow as she actually was." 36 Sherwood, J., alone dissented, and said that "there was no mistake of any such material fact by either of the parties in the case as would license the vendors to rescind. There was no difference between the parties, nor misappre- hension as to the substance of the thing bargained for, which was a cow supposed to be barren by one party, and believed not to be by the other. As to the quality of the animal subse- quently developed, both parties were equally ignorant, and as 35 Harvey v. Harris, 112 Mass., 32 ; Byers v. Chapiu, 28 Ohio, 300 ; Gibson v. Pelkie, 37 Mich., 380. 8 Vide also Irwin v. Wilson, 45 Ohio, 426; Blueatone Coal Co. v. Bel}; 18 S.E. Rep., (w. va.,) 493 Tho\v- ing v. Lumber Co., 40 Minn., 184 ; Fritzler v. Kobinaon, 70 Iowa, 500. S. 49.] MISTAKE AS TO QUANTITY OF OBJECT OF CONTRACT. 37 to this each party took his chances. He agreed with the ma- jority of the court that the right to rescind occurs whenever the thing actually delivered or received is different in substance from the thing bargained for and intended to be sold; but if it be only a difference in some quality or accident, even though the misapprehension may have been the actuating motive of the parties in making the contract, yet it will remain binding." On the other hand, it has been rightly held that shares in a company professing to have a certain valid contract with a Government are not to be considered different in their sub- stance, if that contract does not turn out to be valid. This was held in Kennedy v. Panama Mail Co., 37 on the ground that "there was a misapprehension as to that which was a material part of the motive inducing the applicant to ask for the shares, but not preventing the shares from being in substance those he applied for." 49. The same considerations apply to a mistake of quanti- Mistake as to t.he ty. If, for instance, one of the parties quantity of object of intends to sell a certain quantity of an article, and the other intends to buy a different quantity, there is no contract as the acceptance in such a case varies from the terms of the offer. 3S Thus in Henkel v. Papef* through a mistake of the Telegraph Office, the defendant was apprised that the plaintiff's offer was for fifty rifles, while it was really for three only ; and on that account it was held that there was no contract for the pur- chase of fifty rifles. In Jenks v. Fritz the mistake was as to the quantity of the land sold, and the sale was avoided, as the land had been sold by the acre, and the quantity therefore constituted a material ingredient in the contract. 50. A mistake as to the object of a contract, or as to the quantity, quality or price of that object, Mistake as to the mo- r j i -1.1 , i lives for the contract. 1S nofc to be . confounded with a mistake as to the motives for the contract. Motives often determine the consent of one or both of the parties, and thus have an important influence on the formation of the con- tract, but they are not a part of the contract or its object, and a consent to them is not necessary for the existence or the validity of the contract. A mistake as to the motives 37 2 Q. B., 589. 35 Pepper r. W. U. Tel. Co,, 87 Term., 554. 38 6 Exoh., 7. 40 1 Watte &S., 20 L 83 MISTAKE AS TO MOT IVES FOR CONTRACT. [S. so. therefore cannot affect the existence of the consent or the contract ; nor, as a general rule, is it recognized to affect their adequacy or validity. Thus Kerr in his work on Fraud and Mistake sasy: 41 "When a party is mistaken in his motive for entering into a contract, or in his expectations respecting it, suchmistake does not affect the validity of the contract. If a man purchases a specific article, believing that it will answer a particular purpose to which he intends to put it, and it fails to do so, he is not the less on that account bound to pay for it. " The Indian Legislature appears to have taken the same view. The Explanation attached to s. 20 of the Indian Contract Act thus lays down, that an erroneous opinion as to the value of the thing which forms the subject-matter of the agreement is not to be deemed a mistake as to a matter of fact. Correctly speaking, an opinion as to the value of a thing is a matter of fact, but what is meant by the Expla- nation is, that for the purposes of the law of contracts, such an opinion shall not be deemed to be a matter of fact essen- tial to the agreement. The opinion is certainly a motive of the contract, and the party entertaining it would not have entered into the contract if it were not for it, and the Explanation may, therefore, betaken to show that the Indian Legislature consider- ed that a mistake as to the motives of a contract would not affect the contract. The framers of the Louisiana Civil Code have taken the opposite view, and made the following provisions in the Code relating to the matter : " ( 1824 .) The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive beng that which de- termines the will, if there be no such cause where one was supposed to exist, or if it be falsely represented, there can be no valid consent. " ( 1825. ) The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several ; this principal cause is called the motive, and means that consideration without which the contract would not have been made. 41 P. 484. S. SO.] MISTAKE AS TO MOTIVES FOR CONTRACT. 39 " ( 1826 ). No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the trans- action it must be presumed that he knew it. " ( 1827 ). But wherever the motive is apparent, although not made an express condition, if the error bears on that motive, the contract is void." This was exactly the view of Puffendorf also, who considered that an error in the motive of a contract would annul the con- tract, if the party influenced by that motive had communicated the same to the other party, as in that case the parties would be considered as intending- to make their agreement depend upon that motive as a kind of condition. He adduced, by way of ex- ample, a case in which upon receiving a false account of the death of one of my horses, t buy another, communicating at the same time to the seller the intelligence that I have received: and Puffendorf thought that in this case I might rescind the bargain, provided it had not been executed on either side, sub- ject to indemnifying the seller if he had suffered anything from its non-execution. Barbeyrac pointed out the inconsistency of that reasoning, for if it was true that we had made our agreement depend upon the truth of the intelligence ; as soon as the intelligence proved false, the agreement would be void, defectu conditionis, and the seller consequently could have no claim to damages for the non-execution of it. Barbeyrac therefore was of opinion that an error in the motive would not produce any defect in the agreement. Pothier concurred in this view, and said " as in case of legacies, the circumstance of the motive by which the testator declares himself to be influenced being false, does not prevent the legacy being valid ; for it is still true that the testator intended such a legacy, and it must not be concluded from what he has said of the motive that induced him to leave it, that he intended the legacy to depend upon the truth of that motive as a condition, unless such intention is otherwise sufficiently indicated : in the same manner, and for much stronger reasons, it should be decided with respect to agree- ments, that an error in the motive which induces a party to contract, does not affect the agreement and prevent its being valid ; because there is much less reason to presume that the parties intended their agreement to depend upon that motive as upon a condition ; conditions ought to be interpreted prout Sonant, and conditions which can only be interposed by the 12 90 EFFECT ON CONSENT OF MISTAKE. OF LAW. [8. 51. consent of two parties should be implied with much more difficulty than in case of legacies." 42 Giorgio Giorgi speaks 43 of it as a trite principle that P errore sui molivi non vizia il consenso^ adding, however, die preso alia lettera ci sembra /also e pericoloso (s) He argues strongly against the denial to the error concerning motives its proverbial influence on the validity of consent, on the ground that i motivi del consenso potevano bene spesso trovarsi negli elementi materiali od esterni del contralto \ and that the sole reason for which error can vitiate consent is esso errore cadde sul motivo determinants del contratto. w He says : La persona e la sostanza guardati materialmente bene sta che siano due elementi contrattuali molto divtrsi dal consenso; ma seliconsider- iamo psicologicamente, doe a dire nell ' animo di chi contrae^ noi vedremo che vi assumono tutti i caratteri di motivi determinant del contratto : ed e a questa condizione soltanto, che V errore sulla sostanza o sulle psrsone pud viziare il consenso. Even he, how- ever, comes to the conclusion, that dobbiamo ritener vera la masslma che r err ore sui motivi non vizia il consenso , purche s'intenda restrittivamente a quei soli motivi^ che non furono la causa determinante del contratto. M 51. The above rules and considerations are not deemed to apply in their entirety to an ignorance of Effect on consent of j which m gome respects is different mistake o' Jaw. . f f A T . , . irom ignorance 01 lacts. It is an obvious principle, that for all practical purposes citizens must be pre- sumed to know the law, and that they cannot be allowed to put forward ignorance of it as an excuse. This presumption of know- ledge may often be at variance with the fact, but it is impossible without indulging it, to maintain the order or the institutions of society. The prohibition against the allegation of such ignorance (r) The error concerning motives does not vitiate consent. (#) Which taken literally appears to be false and dangerous. (t) The motives of consent can be found very frequently in tlie material or external elements of the contract. (u) That error is concerning the motives determining the contract. (t) It is very clear that the person and the substance, if looked upon materially' are two elements of a contract very different from consent; but if we consider them psychlogically, that is to say, with reference to the mind of him who contracts, we see that they assume all the characters of the motives determining the contract; and it is on this condition alona that the error concerning the substance or concerning the person can vitiate the consent. (w) We ought to retain as true the maxim that the error concerning motives does not vitiate consent, because it is understood only as restricted to those motives which do not constitute the determining cause of the contract. * a I. Evans, Poth. Obi; 15. | *s iv. Giorg. Teo. Obbl., 75. S. 51. j EFFECT ON CONSENT OF MlSTA^E OP LAW. $ as an excuse rests directly on the ground, that it is impossible otherwise to uphold the goverment of any country. No other principle would be safe and practicable in the common interests of mankind. If ignorance of law were held sufficient to excuse any act or to entitle any person to relief, there is no knowing to what length it would be advanced. From the inherent difficulty of proof in such cases, all administration of justice would be impossible. The rule as to mistake of law is there- fore one of public policy and expedience, and such rules ought, no doubt, to be applied generally with tenacity, the common good of the community requiring that they should not be relaxed. On that very ground, however, the rule is not to be extended more than absolutely necessary. It cannot but lead to irremediable hardship and injustice, if parties are to be always bound by acts done in ignorance of their civil rights. In Moreland v. Atchison^ Wheeler, J., observed that the general rule, was justified by considerations of public policy, and yet so harsh a rule founded upon a presumption so arbi- trary ought to be modified in its application by every exception which can be admitted without defeating its policy. This consideration appears to be altogether ignored by the statutory law of India, under which an ignorance or mistake of the law of the country does not excuse the penal character of an act, nor affect the validity of a contract induced by it. The Indian Contract Act 45 lays down broadly as to the law in force in British India, that a contract caused by a mistake of it is not voidable, because so caused ; and it is provided by an illustration that, if " A and B make a contract grounded on the erroneous belief that a particular debt is barred by the Indian Law of Limitation, the contract is not voidable." This is not the case, however, with a mistake of the law of another country, which is generally deemed a mistake of fact; 48 as the presumption of the knowledge of the laws of one's own country does not apply to foreign law, which has always to be proved like a fact. The Indian Contract Act also provides that a mistake as to a law not in force in British India has the effect as a same mistake of fact. 47 There is an illustration also ** 19 Tex., 303. * 5 S. 21, Act IX. of 1872. * 6 Imperial, &o., Ass. of Trieste v. Funder, 21 Eng. W. R., 116. Haven v. Foster. 9 Pick., 112. Norton i-. Madden, 15 Me., 45. *? S., 21, Act IX of 1872. Bank of Chillicothe r. Dodge, 8 Barb., 233. Lyle T. Shinnebarger, 17 Mo. App ; 66. S. 6579 Cal. Civ. Code. S. 890 Dak. Civ. Code. 92 EFFECT ON CONSENT OF MISTAKE OF LAW. [S. 51. given of the rule, which provides that if A and B make a con- tract grounded on an erroneous belief as to the law regulating bills of exchange in France, the contract is voidable. This distinction between the effect of a mistake of law, and a mistake of fact is in accordance with the general rule of the Roman Law. As observed by Paulus, Regula est juris qnidem ignorantiam cui que nocere, facti vero ignorantiam non nocere. The Roman Law, however, admitted exceptions to this general rule ; and Paulus added that minoribus XXV annis ius ignorare permissum est t quod et in feminis in quibusdam causis dicitur. Soldiers also were included in the exception. Papinian refers to another exception when he says: juris ignorantia- non prodest adquirere volentibus, suum vero petsntibus non nocel. The rule of the Indian Law, however, is absolute, and applicable alike to all persons and contracts. The rule of the English common law also was the same. At law, it is still considered settled, that a misunderstanding of the law will not vitiate a, contract, where there is no misunderstanding of the facts. Kerr even says, that " the rule that mistake in matter of law cannot be admitted as a valid excuse either for doing an act prohibited by the law, or for the omission of a duty which it imposes, is common to all systems of law." 48 That a mistake or ignorance of law forms no ground of relief from contracts fairly entered into with a full knowledge of the facts appears to be generally recognized in the United States also. 49 The Louisiana Civil Code has enacted, 50 that subject to certain exceptions, and restrictions, error in law, as well as error in fact, invalidates a contract, where such error is its only or principal cause. Among the exceptions from the rule, the Code lays down that a contract, made for the purpose of avoiding litigation, cannot be rescinded for error of law. By way of a restriction of the rule, it is provid- ed, that " although the party may have been ignorant of his right, yet if the contract, made under such error, fulfilled any such natural obligation as might from its nature induce a presumption that it was made in consequence of the obligation, and not from error of right, then such error shall not be alleg- 1S Kerr. Fraud .Sc M., 466. * Bank of United States r. Daniel, 12 Pet. oti : Upton r. Tribilcock, 1 Otto., 45. 30 Art. 1846. S. 52.] MISTAKE OF LAW DISTINGUISHED FEOM MISTAKE OP FACT. 93 ed to avoid the contract If a party has an exception, that destroys the natural as well as the perfect obligation, and, through error of law, makes a promise or contract that de- stroys such exception, he may avail himself of such error; but if the exception destroys only the perfect, but not the natural obligation, error of law shall not avail to restore the exception." The courts of equity have in England, as in the United States, introduced some relaxation of the rule in cases of extreme hardship by restricting its application to those in which the mistake is purely one of law, and reference will be made to it in sequel. 52. A mistake of law has been defined to be an erroneous Mistake of law dis- conclusion as to the legal effect of known tinguished from mistake facts. 1 " A mistake of law," as observed of fact - by Dixon, C. J., in the opinion of the court ia Hurd v. Hall? " happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference, arising from an imperfect or incorrect exercise of the judg- ment upon facts as they really are." As a general rule, a person is said to be under a mistake of law, when he is truly acquainted with the existence or non-existence of the facts, but is ignorant of their legal consequences. 3 The Louisiana Civil Code has actually enacted, that he is under an error of law, who is truly informed of the existence of facts, but who draws from them erroneous conclusions of law. Thus, in Good v. Herr f the mistake that induced the contract was in the supposition that children of uncles, deceased at the death of an intestate dying without issue, brother, sister, father or mother, were entitled to a distributive share of the estate of the intestate, and was, therefore, a naked mistake of a principle of law, and not a ground of relief in equity. The distinction between a mistake of fact, and a mistake of law, was well illustrated in Trigg v. Read, 5 in which the vendee of certain land entered into an agreement with the vendor for the rescision of a contract of sale upon the vendor's solicitation under the belief that the latter had no title to a moiety of the land, when, in facb, his title had been perfected by the Statute of Limitation, which fact was withheld by him; and the Supreme Court of Tennessee held that the mis- Anderson Diet. I 3 Mowatt r. Wright, 1 Wend., 355. 12 Wis., 113. * 7 Watt & S., 253. 5 o Humph., 529. 94 MISTAKE OF LAW DISTINGUISHED FROM MISTAKE 0* FAGT. [s. $2. take was one of fact, observing that "if there had been a knowledge of the existence of the facts, and the parties had acted upon the belief, that they constituted no obligator} 7 right either in ignorance that a Court of Chancery would specifically decree the contract against AV, or under the belief that the possession was not protected under the Statute of Limi- tation, it would have been a mistake of Jaw, and not of fact." Where all the facts and the particular of the vendor's title to the land sold were communicated to the purchaser, and he acting upon his lawyer's advice that the vendor had a saleable interest, purchased the land, it was held that the mistake being one of law only, would not avoid the sale. So also, a sale of the county warra nts, showing on their face that under the law at the time they did not constitute a valid charge on the county treasury, was held not to be void, as " having purchased with a knowledge of the facts, and being presumed to know the law applicable to the facts, the plaintiff got precisely what he purchased." 7 On the other hand, in Williams v. Champion, 9 -the court held that a party having rights under a contract, and disclaim- ing them under a mistake as to their character, is not con- cluded by such disclaimer. So also where a husband and wife sold what they supposed was an undivided half interest in a tract of land, the purchaser also supposing he was buying only a half interest, it was held, on ascertaining that the whole belonged to the wife, that the conveyance should be set aside, as it would be grossly unjust to allow the purchaser to retain the whole where he had only paid for a half. 9 In Martin v. McCormick the term which was the object of the contract, contrary to the supposition of both parties had no existence ; and Johnson, J., in delivering the opinion of the New York Court of Appeals, said : " In all that class of cases, where there is mutual error as to the existence of the subject-matter of the contract, a re version may be had." Similarly, in Cochrane v. Willis, 11 there was a contract relating to a life-tenant's right to cut trees, both the parties not being aware, that the tenant, as found afterwards, had died before ; and Bruce, L. J., said that " therefore there was substantially an absence of consideration and substantially a mistake, and it would be contrary to all the rules of equity and common law to give effect to such an a Burkhauserw. Schmifct,45 Wis., 314. 1 9 Irick r. Fulton. 3 Gratt., 193. 7 Christy v. Sullivan, 50 Cal., 337. 10 8 N. Y., 331. 8 6 Ohio., 169. 11 1 Ch. Ap., 58. S. 52.] MISTAKH OF LAW DISTINGUISHED FROM MISTAKE OF FACT. 95 agreement, or to hold that a person ought to be bound by it." (st;9,nd that decisions do not muke the law, but only promulgate it. Besides; what are to be deemed plain and settled principles? Are they such as have been long and uniformly establ ished by adjudications only? Or is a single decision sufficient? What degree of clearness constitutes the line of demarcation ? If there have been decisions different ways at different times, which is to prevail ? If a majority of the profession hold one doctrine, and a minority another, is the rule to be deemed doubtful or is it to be deemed certain ? Take the case of the construction of a will. Every person is presumed to know the law ; and 80 I- 42. | Rankin v. Mortimere, 7 Wtt, 872. J 25 Ala., 694. 8. 56.] MISTAKE OF A WELL SETTLED PRINCIPLE OF LAW. though opinions may differ upon the construction of the will before an adjudication is made ; yet, when it is made, it is supposed always to have been certain." 3 Turley, /., in delivering the opinion of the Court in Trigg v. Read* , said: "These strictures upon the proposition asserted by the English court are, in our opinion, well taken and unanswerable, and they are sustained, as we have seen, by the Supreme Court of the United States. We therefore think the principle, as settled in the United States, to be, that an ignorance of the law, however plain and settled the principles may be, and a consequent mistake as to title founded upon such ignorance, furnishes no ground to rescind agreements or to set aside solemn acts of the parties, when they have been made with a full knowledge of the facts, unless they be tainted by imposition, misrepresentation, undue influence, misplaced confidence, or suspicion. Such is the law when the party acts with a knowledge of the facts constituting his right or title." So also in Good v. fferr 5 , Rogers, /., in delivering the opinion of the Court, observed that it was of no consequence, whether the mistake was of a plain and familiar principle, or the reverse ; whether it was a case of heirship, or any other misapprehension of law ; and added : "We fully agree with Mr. Justice Story, that the distinction between cases of mistake of a plain and settled principle of law, and cases of mistake of a principle of law not plain to persons generally, but what is yet constructively certain as a foundation of title, is not of itself very intelligible, or, practically speaking, very easy of application, considered as an independent element of decision. In contemplation of law, all its rules and principles are deemed certain, although they have not as yet been recognized by public adjudication We grant that, where there is a mistake of a clear, well-established and well-known principle of law, whether common or statute law (for in this respect we can conceive no difference), equity will lay hold of slight circumstances to raise a presumption that there has been some undue influence, imposition, mental imbecility, surprise, or confidence abused. But it is obvious that, in such cases, the mistake of itself is not the foundation of relief, but the relief is had on entirely independent grounds, so as not to impinge the general rule. We therefore are of the opinion that in no case is ignorance or mistake of the law, with a full knowledge of the facts, per se, a ground for equitable relief." Sec. 128. | * 5 Humph., 529. | 3 7 Watts and 3., 263. 14 EFFECT OF MISTAKE OF LAW IN EUROPE. [S. 57. 57. The Codes of European countries give a recognition to errors of law greater even than that given ^ courts of equity in Englaud The Jb rench law makes no distinction between errors of fact and errors of law. The provision in S. 1110 in regard to the nullity or rather the voidability of a contract on the ground of error does not contain any reference to such distinction. There also the question has arisen chiefly in cases in which the mistake of Jaw has led to a mis- take in regard to a right which is the object of a con- tract. Those in favour of the validity of such a contract con- tend that chacun etant presume connaitre la loi, on ne pent jamais invoquer cette espece d 1 erreur; que les articles 1235. 135Q et 2052, par application de ce principe, ne permettent pas d'invoquer la nullite des actes dans les clivers cas prevus par ces articles; qdil faut en conclure que Verreur de droit ne saurait jamais etre invo- quee. 6 This contention, however, is generally held not to be good, on grounds which Rogron has summed up as follows 7 : que si Verreur de droit est telle qu'elle ait ete la cause du contrat, cette cause etant Jausse doit entrainer la nullite du contrat, aux termes des articles 1131, 1109 et 1110; que, dans Vespece t Ver- reur intervenue sur la nature et I'etendue d'un droit nen a pas moins porte sur la substance de la chose, soit que h consentement ait ete donne par erreur de droit, soit quil Vait ete par erreur de fait; que si, pour repousser la nullite quiresulte dans ce cas des dispositions precitees, on invoque les articles 1235, 1356 et 2052, il est facile de voir que ces articles consacrent des exceptions resul- tant de ce que, dans les actes sur lesquels disposent ces articles, L' engagement, niems dans Le cas d'erreur de droit, ne manquerait pas de causs, soit a I'eyard dun payemsnt qni ne pourrait etre repete, lorsqu'il y arait obligation naturelle d'acquitter la dette, soit a Regard de la transaction, puisque /'avantaye d2 prevenir ou terminsr un proces serait uns, cause suffisante* The Spanish law is the same, and as it does not contain any reference to the distinction between a mistake of fact and a mis- take of law, it will evidently be construed in the same way as the corresponding provision of the French law. The Italian Code expressly provides that L'errore di diritto produce la nulllta del cont ratio solo quando ne e la causa unica o principals * (y] This rule embodies the very general principle ( y ) The error of law produces the nullity of the contract only when it is the sole and principal cause of it. ti l^og.Civ. Code, 1021. j 7 Kog. Civ. Code, 1022. | 8 S. 1109. S. 57.] EFFECT OF MISTAKE OF LAW IN EUROPE. of natural equity on which error is recognized as a vice of con- sent, but there appears to be no good reason why this rule is formulated so differently from that as to the mistake of fact, in which the criterion of its influence on the consent to a contract is made to depend ondagli elementi material o esterni dsi con- tratti : dalla sostanza, e dalla personal' The practical effect of the two rules is the same, as the word sostanza has beeno ften held to be quetta qualita del Voggsto contrattuale, che e stato il motive determinants del contratto. (a) Thus Giorgio Giorgi, in his work on the Theory of Obligations says: 9 Tenuto fermo questo concetto, la formula ^ errore sulla sostanza" viensa comprendsre tutti quegli errori di fatto, i quali mentre consider andoli psi- cologicamente sono le cause determinant del contratto, considerati invece estrinsecamente cadono sidC oggetto del contratto medesimo. II rimanente capoverso poi dell" 1 articolo 1110, parlando deW errore sulla persona e riducendo I'azione di nidlita alia sola ipotesi. in cui la considerazione di essa persona sia stata la causa del contratto, completa il pensiero del legislatore; e dimostra in modo vie piu palese Vintendimento di lui. Intendimento, torniamo a ripeterlo, di rendere invalido quel consenso, di cui un errore di fatto fit ilmotivo, osecosi vogliamo dire, la causa dsterminante. (li) It has been contended that it is not the Article 1109 that ought to be construed liberally, but the Article 1110 that should receive a restricted signification, and be restricted to the cases in which the mistake of law oltread essere la causa unica o prin- cipale del contratto, cada sulla sosstanza o sulla personal Giorgio Giorgi, in his work on the Theory of Obligations, 10 says that he would not have scrupled to adopt that view: se non avessimo creduto chel^articolo IHOmta privo di retto senso giuridico, qualora non s'interpreti con molta larghezza. (d) ( z ) The elements material or external of the contract ; the substance and the person. (a) That quality of the object of contract which has been the motive determining to the contract. ( 6 ) This conception firmly held, the formula error concerning substance, comprehends all those errors of fact which, if considered psychologically are the causes determining to the contract, but considered, instead extrinsicallyconcern the object of the contract itself. The remaining paragraph of Article 1110, speaking of the error conoarning the person and leducing the action of nullity to the sole hypothesis, in -which the consideration of the same person may have been the cause of the contract, completes the idea of the legislator, and shows, in a way much more clearly, his intention, an intention, we return to repeat, of rendering invalid the consent, of which an error of fact was the motive or, if we wish to say so, the determining cause. ( c ) Besides being the only or principal cause of the contract, should concern the substance or the person. ( d ) If he had not believed that Article 1110 would remain deprived of its correct juridical sense, if not interpreted very freely. IV, 74. I 10 IT, 76. 108 EFFECi 1 OP MISTAKE ON TRANSFER OF OWNERSHIP. [S 58. 58. The above rules apply not only to contracts, in the limited sense of that expression, but, in the Effect of mistake on j a , so , trans f ers o f property, and transfer of ownership. . r i i conveyances in pursuance or them, and to all contracts of that class generally known as executed. They all require the consent of the parties, the concurrence of their wills, like ordinary contracts. The chief additional element to be considered in their case is that of the delivery of the object of the contract, and this delivery does not supply the pliice or dispense with the necessity of the concurrence of wills. Delivery is, indeed, one of the chief means of derivative acquisition. Among the Romans, corporeal things of whatever kind, tradi potest et a domino tradita alienatur. n The rule being based, as observed by Gains in his Institutes, on the principle, nihil tarn conveniens est naturali aequitati, quam volantatem domini, volentis rem suam in alium transferre, ratam haberi. But traditio alone could not transfer ownership without a corresponding mental intention which was always con- sidered an essential constituent of it. As observed by Paul, nunquam nuda traditio transfert dominium, sed ita, si venditio aut aliqua iusta causa prcecesserit, propter quam traditio sequeretur. How broadly the words iusta causa were understood, is evident from what Rudolph Sohm observes in his work on the Institutes of Roman Law as to no delivery being a traditio in the legal sense, unless it is accompanied by an intention to transfer ownership. This intention to transfer ownership involves a will to give ownership, and a consent to its being taken by the person to whom the traditio is made. If there is no such will or consent, mere delivery cannot effect the transfer of ownership. The real question, therefore, in all such cases, is whether a mis- take as to the thing delivered, interferes with, or is a bar to, the existence of the intention or consent, which, coupled with traditio, is sufficient to transfer the property in that thing. A mistake of this sort is thus of importance only so far as it makes the delivery otherwise than in pursuance of the concurrence of wills to the transfer of ownership. If the article delivered is different from that as to which the minds of the parties meet, there will be no concurrence as to it, and its deliverey alone will not effect the transfer of its ownership. 11 Jua. In st. II., L 40. 52 ] TBANSFBR OF OWNERSHIP OP NON-SPECIFIC ARTICLES. 59. This rule is applicable in case of transfer of non-specific chattels. Thus in Gardner v. Lane, u Transfer of ownership there wag a contract for the sale of 135 chattel n0n " Spet barrels of ckcrel No. 1, and of the barrels delivered, and supposed to contain mackerel No. 1, 45 contained mackerel No. 3 and 48 only salt ; and property in these barrels delivered by mistake was held not to be transferred to the vendee. Bigelow, C. J., in delivering the opinion of the Supreme Court of Massachusetts, said : " the minds of the parties must meet, and there must be a mutual assent to the transfer of certain specified pro- perty, before any change of title to it can be effected . . . . Where parties to a contract of sale agree to sell and purchase a certain kind or description of property not yet ascertained, distinguished, or set apart, and subsequently a delivery is made, by mistake, of articles differing in their nature or quality from those agreed to be sold, no title passes by such delivery. They are not included within the contract of sale ; the vendor has not agreed to sell nor the vendee to purchase them. Delivery of itself can pass no title ; it can be effective and operative only when made as incidental to and in pursuance of a previous contract of sale .... The delivery of different articles from those embraced in the contract is inoperative, for the reason that there is no agreement for their purchase and sale." The distinction is great, pointed out the Court " between an agreement to sell and deliver a specified article, concerning the quality of which the parties were deceived or mistaken, and an agreement to sell one article and a delivery by mistake of a wholly different article, which did not form the subject-matter of the agreement. In the former the title passes at the election of the vendee ; in the latter it does not." The cases, in which it is held that if the article delivered is bond fide consumed or otherwise disposed of by the person to whom it is delivered, the person delivering it cannot recover back the same, are not inconsistent with this rule. They do not proceed on the principle that there wasa transfer of proprietary right in such cases, but on other considerations which do not derogate from the force of that principle. Thus in Hills v. Snell, 13 a baker, who had ordered flour of A, received by u warehouseman's mistake, the flour of B, which was more valuable, and he was held not liable for the extra value. The decision did not, however, proceed on the ground that the proprietary right in the flour vested in the "9 Allen, 492. ~~j " 104 Mass., 173. ~~ TRANSFER OF OWNERSHIP OF SPECIFIC ARTICLES. [8. 63. baker ; but on the ground that the baker in good faith consumed it, and that delivery by the warehouseman was a sufficient authority in the circumstances for his consuming it as against B. In fact Wells, J., in delivering the opinion of the court, distinctly admitted '* that it was so delivered by mistake might have entitled the plaintiffs to reclaim the property from one having it in possession, or to recover its value from one \\lio had disposed of it with knowledge of the mistake." 60. The rule has been extended even to the transfer of Transfer of ownership specific articles. Their delivery also will in case of specific not effect a transfer of their ownership, articles. when there is a mistake as to them, a mistake either as to their identity, or as to those qualities with reference to which their transfer was consented to. Thus, if a thing is not of that kind or does not answer the description, with reference to which it was sold, the delivery of that thing, even in pursuance of the sale, will not effect a transfer of its ownership, Mr. Clarke, in his work on Contracts, says 14 : "Suppose a person sells another, and the latter believes that he is buying, this b;ir of gold, this case of cham- pagne, or this barrel of oysters. The bar turns out to be brass, the case to contain sherry, the barrel to contain oatmeal. The parties are honestly mistaken as to the subject-matter of the contract, but their mistake has nothing to do with their respec- tive rights. These depend on the answer to the question : Was the article sold a bar of metal or a bar of gold, a case of wine or a case of champagne, a barrel of provisions or a barrel of oysters ? A contract for a bar of gold is not performed by the delivery of a bar of brass. A contract for a bar of metal leaves each party to take his chance as to the quality of the thing contracted to be sold, but this, again, would not be performed by the delivery of a bar of wood painted to look like metal." The case is still clearer when the mistake is as to the iden- tity of the thing. Thus, a delivery of a sovereign for a shil- ling, as in the case supposed in the argument and referred to in the decision of the majority of judges in the casp. of Reg. v. Mid- dleton, 15 or as in the case of Reg. v. Ash w ell t 1S involved a mistake in regard to tho identity of the coin, and was held not sufficient to transfer the property in the sovereign to the receiver of it. In the former case, seven eminent Judges, referring to the case of a person handing to a cabman a sovereign by mistake for 14 P. 296. ) is 2 C. C. Res., 38. | 10 16 Q. B. D., 190. S. 60.] Ill a shilling, observed, in their decision, that they were "decidedly of opinion that the property in the sovereign would not vest in the cabman." So in Reg. v. Ashwett, Cave, J., observed that, "as there was a mistake as to the identity of the coin, no property passed. 1 ' The observation was not material to the final conviction ; but none of the other judges dissented from it, the difference among the judges being as to whether the transfer of the possession of the sovereign took place at the time when Ashwell received it, or when he came to know of its being a sovereign. So also, the delivery by mistake, of a note of 10 for that of 1 was, in the similar case of Reg. v. Hehir not deemed to have the effect of transferring the proprietary right in the note. In that case, 304 Johnson and Andrews, JJ., actually observed that the property in the 10 note did not pass to Hehir. In Chapman v. Cole, 1 * a ten-dollar gold piece of Moffat's issue of California coins, and not United States' issue was, by mistake of the giver and receiver, passed as a half- dollar coin; and it was held that there was a transfer only of possession and not of property, and that it could be recovered by the giver from a person to whom the receiver had passed it on without a knowledge of its real value; though, current coin might not be so recoverable, on account of the peculiarity relating to the transfer of ownership in it. Metcalf, J., in delivering the opinion of the court, said : " There was a mistake as to the identity of the subject of the agreement, and, in such case, there is no assent of the parties, and no binding transaction." The same principle was sometimes applied in other cases, in which there was no mistake in regard to the identity of the thing given. Thus in Reg. v. Middleton, the sum of 8 odd was given, by a mistake of a Post Office clerk, to Middleton, who was entitled to 10 shillings only. Seven judges, in their joint decision, laid down that the case was undistinguishable from that of a person handing to a cabman a sovereign, by mistake for a shilling, and said : "There was no contract to render it (the sum given) his which required to be rescinded; there was no gift of it to him, for there was no intention to give it to him or to any one. It was simply a handing it over by a pure mistake, arid no property passed. As this was money, we cannot test the case by seeing whether an innocent purchaser could have held the property. But i' (1895) 2 I. E., 709. | 18 12 Gray., 141. | 2 C. C. Res., 38. TRANSFER OF OWNERSHIP OF SPECIFIC ARTICLES. [8. 60. let us suppose that a purchaser of beans goes to the warehouse of a merchant with a genuine order for so many bushels of beans, to be selected from the bulk and so become the pro- perty of the vendee, and that by some strange blunder the merchant delivers to him an equal bulk of coffee. If that coffee was sold (not in market overt) by the recipient to a third person, could he retain it against the merchant, on the ground that he had bought it from one who had the property in the coffee, though subject to be divested ? We do not remember any case in which such a point has arisen, but surely there can be no doubt he could not ; and that on the principle enunciated by Lord Abinger in Chanter v. Hopkins, ** when he says: ' If a man offers to buy peas of another, and he sends him beans, he does not perform his contract, but that is not a warranty; there is no warranty that he should sell him peas ; the contract is to sell peas, and if he sends him any thing else in their stead, it is a non-performance of it.' J It is submitted, however, that there was, in this case, no mistake as to the identity, or even as to any essential quality of the money given. The clerk intended to give the money that was given. The mistake was as to the amount of money which the clerk considered Middleton entitled to. He had looked at a wrong advice, and, on that account, believed that Middle- ton was entitled to receive the sura which he therefore intended to give, and which was thus given, to him. The reference in the judges' decision to the case of beans and coffee, and to that of peas and beans referred to by Lord Abioger, was not relevant, as such cases are not of a transfer of a definite specific article, and more like the case of barrels in Gardner v. Lane than that of the sovereign, to which the judges likened it. Similarly, in Wolfstein v. People, al a large sum was paid to a person for a smaller one, by a mistake, as to his right to receive the same, and the court said : " It will not do to say that the owner parts with the property voluntarily, and, there- fore, there is no unlawful taking. There may be the physical act of the owner handing that which is his to another ; but there is absent the intellectual and intelligent assent to the transfer, upon which the consent must necessarily depend." It is clear, however, that there was an intellectual and intelli- gent assent to the transfer of the sum given, and the assent 4 M. & W., 404. I " 6 Hun., 121. S. 61.] RECOVERY OF A THING GIVEN UNDER MISTAKE. was given not on account of a mistake in regard to that sum itself, but in regard to the right of its recipient to receive the same ; a mistake which, therefore, was not so much as to the identity of the thing given,*Jbut as to the motive for its giving. 61. The question of the transfer of ownership has often arisen in cases in which money or other Lw ing t^K is paid or given by one person to another under a mistake. Koman and French jurists often held that the ownership would be trans- ferred in such cases notwithstanding the mistake. Thus Cujas, in contending that money paid, under a mistake of law, could not be recovered back, as its recovery would be in the nature of a gain, relied on the fact that that could not be called mine, which I had already paid to another ; that it had already become the property of another person, and that, therefore, when I reclaimed it, I was demanding what was not mine, but his. D'Aguesseau who held, that money so paid might be recovered, based the title to recovery on general consi- derations of equity, and not on the ground of the continued proprietary right of the giver ; observing " who can doubt but that money which is paid immediately becomes, summo jure, the property of the person receiving it?" 23 This is the case, however, only when the mistake is as to the non-essential qualities of the thing given or as to the motives for the giving. And this is the character of the mistake generally in such cases. The mistake may, however, not be such, but iii regard to the identity or the essential qualities of the thing ; and there is no sufficient authority for the proposition that the property in the thing given will be transferred, even in the case of such a mistake. In Brisbane v. Dacres, 23 the payment was under a mistake as to the right of the Admiral to receive one-third of a certain freight, and the court held that the money paid could not be recovered; Mansfield, C. J., observing that the rnaxim Volenti non fit injuria applied strongly to the case, and justly so, as the mistake was such as could not aifect the validity of consent, or interfere with the transfer of the right of ownership of the money paid. The maxim lias been held to apply in other cases also. In some cases, it was, however, held not to apply, but this was only when the mistake was in regard to an error in corpore or in sulstantia. Thus, in Northrop v. Graves, 24 " II. Evans, Poth. Obi., 420. | 23 5 Taunt., 143. 2t 19 Conn., 548. 15 1J4 RECOVERY OF A THING GIVEN UNDER MISTAKE. [S. 61. Church, 0. J., in delivering the opinion of the court, after referring to the contention based on that maxim, said : "we agree that men should not complain of the consequences of their deliberate and voluntary acts ; but we do not agree that acts performed under the influence of essential and controlling mistakes are voluntary, within the meaning of the maxim referred to." Practical difficulties have arisen in such cases, as the real distinction in regard to the character of the qualities, in respect of which the mistake has been made, is not sufficiently adverted to always. Great importance, on the other hand, is attached as to whether the mistake is one of fact or law, though the nature of the mistake is the same in both these cases. The mind quite as much, and no more, assents to the payment made under a mistake of law, than if it were made under a mistake of fact. The delusion is the same in both cases; in both alike, the mind is influenced by false motives ; nor is there any difference in re- gard to the principles on which the rule of recovery in such cases is based. If there is justice in the payer's demand for recovery, and injustice or unconscientiousness in the payee's with- holding of it, in case the payment is made under a mistake of fact, it will be the same when the payment is made under a mistake of law. It is settled, however, that, in the former case, there is a right of recovery, though, to avoid the question of the transfer of title, that right is generally based on the inequity of a person retaining a thing so given to him. Thus, in Townsend v. Crowdy, 25 the mistake was one of fact on the part of the payer, who, along with the payee, was under an impression that the money paid was due, and, though the payee shared the same impression, yet Byles, J., observed that "that being so, it was manifestly against conscience that the defendant should retain it." So also in Kelly v. Solari* Parke, B., said: *'I think that where money is paid to another under the influence of a mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back, and it is against conscience to retain it." Parke v B., further observed in this case, that " if the money is intentionally paid, without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person 2 * 8 C. B. K. S., 495. | 2G 9 M. & W., 58. 8. 61.] RECOVERY OF A THING GIVEN UNDER MISTAKE. receiving shall have the money at all events, whether the fact be true or false, the latter is certainly entitled to retain it." There will be no mistake in such a case, as *' mistake in any proper sense is excluded where there is a conscious doubt accompanied with an alternative intention or authority which is to be appropriated, so to speak, according to the event." 27 Besides, there will be no equitable considerations in such a case to require a refund. The right of recovery in case of a mistake of fact is quite as fully recognized in the United States also. Thus it has been repeatedly held in Missouri, that where there has been an accounting and settlement between parties on the basis of merchants' book entries, and afterwards an error is discovered in the account of crediting a single item twice or wrongly adding a column of figures, an action at law will lie to recover the balance paid by reason of such mistake. 2a So also an indorser of a note is allowed to recover money paid by him under the mistaken belief that the note had been duly presented for payment, 29 So absolute is the rule of recovery in a case of a mistake of fact, that it was laid down in Kelly v. Solan, as well as in other cases, that even negligence would nofc interfere with the recov- ery ; and if there was an actual mistake at the time of the payment, it would be immaterial in regard to the right of recov- ery, that the person making the mistake had means of easily avoiding it and finding out the real facts, or even that he had known and only forgotten them. In Komby v. Central National Bank, Wagner, J., said : "If the money is paid under the impression of the truth of a fact which is untrue, it may, gen- erally speaking, be recovered back, however careless the party paying had been in omitting to use due diligence to inquire into the facts. The imputation of negligence would not bar the pUiintiff's action." So also in Lylev. Shinnelarger, 31 the court said: ''whether the money was paid without any fault or negligence of plaintiff, or through his negligence, if it was through a mistake of facts, makes no difference, and does not alter the legal relations of the parties." It has been held in some cases that a recovery cannot be had where the person paying has access to information which 2 7 Poll. & Wr. Poss., 103. Hanson v. Jones, 20 Mo. App "* Budd v. Eyerman, 10 Mo. App., 437. Davis v. Krum, 12 Mo. App., 279. 5b5. 17 Mo. App., 63. Talboc v . National Bank, 129 Mass 67. 30 51 Mo., 375. 116 RECOVERY OF A THING GIVEN UNDER MISTAKE. [S. 61. he, by bis own laches neglects to acquire ; s2 and in Milnes v. Duncan, 33 Bayley, /., observed, that "if a party pay money under a mistake of the real facts, and no laches is imputuble to him, in respect of his omitting to avail himself of the means of knowledge within his power, he may recover back such money." The weight of authority, however, is clearly against any such limitation, and in favor of the view here advanced, and the mere fact of the mistake having been caused by negli- gence is not generally considered a bar to recovery, M at least where the payee can be put in statu quo 35 In Merchants' National Bank v. National Eagle Bank, Colt, J., observed that " it is well settled by recent decisions that money paid to the holder of a check or draft drawn without funds may be re- covered back, if paid by the drawee under a mistake of fact, and though the rule was originally subject to the limitation that it must be shewn that the party seeking to recover back had been guilty of no negligence, it is now held that the plaintiff in such cases is not precluded from recovery by laches in not availing himself of the means of knowledge in his power." And in Le we lien v. Garrett, 37 it was even held that if a party once had a knowledge of the real fact, but at the time of the transaction it slipped from his mind, and the matter was consummated under a mistake, he could recover back. The decision in Boylston National Bank v. Richardson 38 is not against this view, as the plaintiff was held not entitled to recover ; and though the teller of a bank saw fit to pay a cheque without taking the precaution to inform himself of the state of the account of the drawer whose balance on deposit was not sufficient to meet it, it was held there wae nothing in the transaction which bore the character of a mistake of fact, in a legal sense, but only that of laches. It was further contended in the case of Kelly v. Solari, that the money could not be recovered, except where it was un- conscientious to retain it, and Roll'e, B., thought " that wher- ever it is paid under a mistake of fact, and the party would 38 Wheeler v. Hatheway, 58 Mich., 77. Buffalo v. O'Mally, 61 Wis , 255. BrDmmit r. McGuire, 107 N.G., 351. s 6B. & C., 671. s* Brown r. College Corner, 56 Ind., 110. Kingston v. Bank, 40 N. Y., 391. Lawrences. American Nat. Bank, 54 N. Y., 432. Devine v. Edwards, 101 111., 13. Koontz r. Central Nat. Bank, 51 Mo., 275. Wilson v Barker, 50 Maine, 447. 101 Mass., 281. 58 Ind., 442. loi Mass , 287. S. 61.] RECOVERY OF A THING GIVEN UNDER MISTAKE. 117 not have paid it if the fact had been known to him, it cannot be otherwise than unconscientious to retain it." The decision did not proceed, however, on that ground, and that view has not been taken in subsequent cases. Mr. Beach in his recent work on the Modern law of Contracts, 38rt indeed, says that " money paid by mistake of fact cannot be reclaimed when the defendant received it in good faith, in satisfaction of an equitable claim, nor when it was due in honor and conscience." 39 The two cases cited by him, do not appear, however, to support at least the second part of his observation. The French Civil Code lays down broadly without any mention of law or fact, that LorsqvCun? personne qui, par erreur, se croyait debitrics, a acquitte une dette, elle a le droit de repetition contre le creancier. 40 The Italian Civil Code 41 also enacts that Chi pzr errore si credeva debitors, guando abbia pagato il debito, ha il diritto della, ripetizione contro il creditors. (e] The Egyptian Civil Code lays down that *' he who has received what was not due to him is bound to restore it," 42 adiling an exception which is now recognized even in ihe English law, that ' if the voluntary payment has been made in virtue of a duty, even though a duty not sanctioned by law, restitution is not due." 43 Even the Indian law, 44 which makes so sharp a distinction in other cases between a mistake of fact and a mistake of law, lays down in general terms that " a person to whom money has been paid, or any thing delivered, by mistake, must repay or return it." In English law the general rule as to the money paid under a mistake of law is no doubt that, it is not recoverable. The rule is attempted to be justified only on the ground that such a mistake does not receive any effect, 45 specially on the ground of public policy. 46 It is contended in support of it, (c) Who by mistake believing himself to be a debtor, pays the debt, has the right of recovering it from the creditor. "a P. 798. 39 Moorer. Eddowes,2 Ad. & E., 131. Farmer v. Arundel, 2 Win. Bl., 624. * S. 1377. * S. 1146. * 2 S. 206. *3 8. 207. ** S. 72, Act. IX of 1872. * 5 Lowry v. Bourdieu, Doug., 468 ; Bilbie v. Lumley, 3 East, 409. * n Freeman v. Curtis, 51 Me., 140 ; Deysher v. Triebel, 64 Pa. St., 383 : Real Estate Sav. Institu- tion v. Lindcr, 74 Pa. St., 371 : Silliman v. Wing, 7 Hill., 159 ; Tyler fl.Smith, 18 B. Hon., 793 ; Covington v. Powell, 2 Met , 229 ; Bacon r. Bacon, 17 Pick. 134. RECOVEEY OF A THING GIVEN UNDER MISTAKE. [S. 61. that great inconvenience would arise if a mistake of law were held sufficient to give a right of recovery. When doubtful questions of law arise, the defendant has an option either to litigate the question or submit to the demand and pay the money, and it is said that it. would be most mis- chievous and unfair if he who has acquiesced in the right by such payment should be at liberty, at any time within the period of limitation, to rip up the matter and recover back the money. Thus in Rogers v. Ingham^ 1 a claim by one legatee against another for certain money paid to the latter by his consent was held not to lie. James, L. J., said that if relief could be given for mistake in such cases, " it would open a fearful amount of litigation and evil in the cases of distribution of estates, and it would be difficult to say what limit could be placed to this kind of claim, if it could be made after an executor or trustee had distributed the whole estate among the persons supposed to be entitled, every one of them having knowledge of all the facts, and having given a release. The thing has never been done, and it is not a thing which in my opinion is to be encouraged. Where people have a knowledge of all the facts, and take advice, and whether they get proper advice or not, the money is divided and the business is settled, it is not for the good of mankind that it should be re-opened by one of the parties saying : ' You have received your money by mistake, I acquiesced in your receipt of it under that mistake, and, therefore, I ask you to give it to rne back.' ' Mellish, J., further observed that " nothing would be more mischievous than to say that money paid, for instance, under a mercantile contract, according to the construction which the parties themselves put upon that contract, might, years afterwards, be recovered, because perhaps some Court of Justice, upon a similar contract, gave to it a different construction from that which the parties had put on it." In Peter v. Lancaster,* 3 Gilchrist, J., observed that " every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back." In Clark v. Dutcher, 49 Suther- land, J. considered *' the current or weight of authorities as * 3 Ch. D., 357 I * s 14 N. H., 383. * 9 Cow., 674. S. 61.] RECOVERY OF A THING GIVEN UNDER MISTAKE. clearly establishing the position, that when money is paid with a full knowledge of all the facts and circumstances upon which it is demanded, or with the means of such knowledge, it cannot be recovered back upon the ground that the party supposed he was bound in law to pay it, when in truth he was not." The chief limitation to this rule is that of a mistake of foreign law, which, as observed above in S. 51, is always dealt with as a mistake of fact, and money paid on account of which may always be recovered. c< The plaintiffs then stand," said Johnson, J., in Bank of Chillicothe v. Dodge, 50 '* in precisely the same situation as though the money had been paid by them under a mistake as to material facts ;" as *' when one misunderstands or mistakes a foreign law, it is considered ignorantia facti excusat." In some cases, the refusal to allow recovery is so inequit- able, however, that the rule of policy has to give way to some extent to equitable considerations. A recovery is thus allowed even of money paid under a mistake of law, when it is fraudulent and unconscientious for the recipient to retain it ; and retention is deemed such when he has not even a moral or natural right to that money. And full effect may be given to the doctrine of public policy underlying that rule without extending it to cases in which it will be inequitable for the receiver of the money to retain it. As observed by Evans in his notes on Pothier's work on Obligations, 2 '* the effect of the doctrine is carried sufficiently far for the purposes of public utility, by holding that no man shall exempt himself from a duty, or shelter himself from the consequences of infringing a prohibition imposed by the law, or acquire an advantage in opposition to the legal rights and interests of another, by pretending error or ignorance of the law, without its following as a consequence, that the ignorance of one man under no moral obligation, and intending no gratuitous donation, shall be to another a title of adventitious acquisition." Similarly, Church, C. J., in delivering the opinion of the court in North- rop v. Graves, 3 said " that a party may not urge his ignor- ance of the law as an excuse or palliation of a crime, or even of a fault, we may admit ; that he may not, by reason of such ignorance or mistake, obtain any right or advantage over another, we may admit ; but we do not admit that such so 8 Barb., 233. 1 Lyle t. Shinnebarger, 17 Mo. Ap., 66. a II Evans Poth. Obi., 392. 3 19 Conn., 548. 120 RECOVERY OF ALTHING GIVEN UNDER MISTAKE. [S. 61. other may obtain or secure an unjust advantage over him by reason of his ignorance or mistake, even of the law." Tliis was the view taken by the majority of the Roman law- yers in regard to a mistake of law. Constat id demum condici posse alicui, quod vel non ex justd causd ad eum pervenit, vel redit ad non justatn causam. J^x his omnibus causis quoe jure non valuerunty vel non habuerunt effectum^ secutd per errorem solutione, condictioni locus erit. Dioclesian and Maximilian gave their authority to the opposite view maintained by Cujas and others, in regard to a payment under an error of law, ac- cording to whiclynoney so'paid could not be reclaimed. Pothier also followed that view. Vinnius, Huber and D'Aguesseau, however, took the earlier view, and relying on the Koman maxim juris error in damnis amittendce rei fuce non nocet, said, who will support Dioclesian and Maximilian ; the jurists and the spirit of equity itself, exclaiming, on the other side, " that an error in the law shall not injure those who are seeking their own, or which is the same thing, shall not injure any person in regard to the incurring a loss." 4 Cujas contended that the object of a person who reclaimed what he had paid was to regain what he had lost, not to avoid losing what belonged to him, that his solicitude then related to gain and not to loss ; and that a person mistaking the law was assisted so far as that he should not lose, not so far as that he should be relieved from having lost. As explained above, D'Aguesseau pointed out that the recovery in such cases was allowed not because of any continued proprie- tary right of the giver in the money paid ; as, if so, there could be no recovery even when the payment was under a mistake of fact. In referring to the distinction of Cujas, D'Aguesseau said that it came to this, " that if the error of law appear before the payment, there is a right of retention, so that the error shall not hurt ; but if the payment is complete, if the loss has happened, if the object of a person mistaking the law, is not that he may keep what is his own, but that he may recover that which is now become another's, then he comes too late, as he can only complain of having been deceived and circumvented by himself." 5 The entire argument has been answered at length by D'Aguesseau, who says : " Although it may with some degree of subtil ty be said, that a person seeking to recover what he has lost, is catching at a gain, yet in truth he * II Evans Poth. Obi., 417. | * II Evans Poth. Obi., 419. 8. 61.] RECOVERY OF A THING GIVENfUNDER MISTAKE. only desires to repair an injury which he suffers ; he sues that he may not continue to suffer a loss, not that he may acquire a gain (ne perdiderit, non vt lucretur). But what is the difference, if you merely attend to natural equity, between a loss which is future and one which is past; so that a person who is repairing a loss already passed, shall be said to acquire a gain, and one who wards off a loss that has not arrived, shall only be said to avoid a loss ? Neither of them acquires anything, neither of them is made any richer ; the one endeavours not to lose, the other to be relieved from having lost ; the one, whilst the loss is still impending, keeps what he was about to have lost, the other recovers what he has already lost without a cause." That money paid under a mistake of law can be recovered back, where there was no moral or honorable obligation to pay the same, is not altogether without authority in the English law also. In Moses v. McFerlan, 6 the leading authority in favor of the view that a person entitled ex cequo et bono to recover, may recover ; Lord Mansfield said : *' If the defendant be under an obligation, from the ties of natural justice, to re- fund, the law implies a debt, and gives this action (indebitatus assumpsit] founded in the equity of the plaintiff's case, as if it were upon a contract." But the existence of any right in that person will prevent the creation of any obligation to refund (//) . And the principle of that decision though sometimes dis- approved, has been often followed in cases in which the payment was made under a mistake of law. Thus, in Northrop v. Graves* the court approved of the rule laid down in that case, and said : " We do not decide that money paid by a mere mistake in point of law, can be recovered back ; as if it had been paid by an infant, by a feme covert, or by a person after the statute of limitations has barred an action, or when any other merely legal defence existed against a claim for the money so paid, and which might be honestly retained. But we mean distinctly to assert that, when money is paid by one under a mistake of his rights and his duty, and which he was under no legal or moral obligation to pay, and which the (fT) In Srisbcme v. Dacres," 1 Gibbs, J.. said: "I think, on principle, that money which is paid to a man who claims it as his right, with a knowledge of all the facts, cannot be recovered back'' ; adding that the weight of authorities was in favor of that view, and that the dicta that went beyond it, were not supported or called for by the facts of the cases. As observed by Mansfield, 0. J., however, there was nothing contrary to equum et "bonum in the payment in that case. a 2 Burr., 1005. | 5 Taunt., 143. | B 19 Conn., 548. 16 i 22 RECOVERY OF A THING GIVEN UNDER MISTAKE. [S. 61. recipient has no right in good conscience to retain, it may be recovered back, in an action of indeUtatus assumpsit, whether such mistake be one of fact or of law ; and this we insist may be done, both upon the principle of Christian morals and the common law." In Culbreath v. Culbreath? Nisbet, J,, in delivering the opinion of the court, said : " When money is paid to another, under a mistake as to the payer's legal obligation to pay, and the payee's legal right to receive it, and there is no considera- tion, moral, or honorary, or benevolent, between the parties, by the ties of natural justice, the payor's right to recover it back is perfect, and the payee's obligation to refund is also perfect it becomes a debt. It is a case fully within the range of the ex cequo et bono rule. This is that case. It falls within none of. the exceptions mentioned by Lord Mansfield. It was not paid as a debt due in honor or honesty, as in case of a debt barred by statute it is not paid as a donation it was not paid as a debt contracted in violation of public law ; for example, money fairly lost at play. In all such cases it is conscientious for the defendant to keep it. In tins case there is uo right, or equity, or conscience upon which the defendant can plant himself." The court admitted, however, that "a recovery cannot be had unless it is proven that the plaintiff acted upon a mistake of the law ;" and that the action for recovery u is not main- tainable where money is paid through mere ignorance of the law, or in fulfilment of a moral obligation, or on a contract against public law, or on any account which will make it consistent with equity and good conscience for the defendant to retain it." The difference between a mistake and an ignorance is not generally admitted, but there appears to be no doubt that recovery is not allowed in the other cases referred to by the court. Recovery is not allowed, where payment is made to a person on account of a claim of right by him but against which there was a valid legal defence, of which the party makins the payment was unaware at the time. Similarly in Ray v. Bank of Kentucky it was held that where money was paid under a clear and palpable mistake of either law or fact, essentially bearing upon and affecting the contract, without cause or consideration, and which in law, honor or conscience was not due and payable, it might be recovered back. 8 7 Ga., 64. I 10 3 B . Mon., 510. 3. 63.] TRANSFER OF RIGHTFUL POSSESSION. Another distinction has recently been made as to the right of recovery in cases in which the mistaken payment was made not in pursuance of an agreeement, but without considera- tion and as of free gift. Thus it has been held in Pickslay v. Starr, 11 that one who delivers a Christmas gift in the shape of a cheque to an employee, according to habit formed of previous years, though by mistake, and in forgetfulness of the fact that the employee's salary had been raised, and the amount of the cheque is charged to the employer's account a few days latter without notice to him of that fact for some months, the donor cannot avoid the gift on the ground of mistake. Gray, J., in delivering the opinion of the court, said : " This is not like the case where parties come to some agreement, in the belief that a certain state of facts exists, and money is paid by the one to the other in consequence thereof, and it subsequently appears that there was a mistake with regard to the facts. Money when so paid is deemed to have been received by the one to whom it is paid to the use of the one paying it. The mutual error, which affected the agreement between the parties, requires that they should be remitted to their original rights. In such a case, in equity and in justice, the money does not belong to the party receiving it A gift, however, requires no consideration and depends upon no agreement, but upon the voluntary act of the donor only, and is accom- plished by a delivery of the subject of the gift. It would be a very harsh rule to lay down, that a party, receiving a gift under the circumstances of the present case might incur, an unknown and unsuspected obligation, if required to return the fund." 62. The same rules apply to a transfer of a right to pos- session or of a rightful possession a Effect of mistnke on possess i, )n law f ul and valid a i ns t transfer of rightful r ,, , ,. possession. *" persons including even the person previously entitled to and making a transfer of it. Consent of the parties is as essential to a transfer of such possession as to a transfer of the right of ownership; and the existence and non-existence of consent will, in such a case, have the same effect as in the case of a sale or conveyance. A mistake, if such as to prevent a concurrence of wills in the case of these latter, will prevent the same in case of the former also, and thus avoid the transfer of rightful possession as that of ownership^ 11 149N. Y., 432. 124 RIGHTFUL POSSESSION DISTINCT FROM POSSESSION. [g. 63. Nor is it material whether the mistake is in regard to the nature of the transaction leading to the transfer, or in regard to the transferee or the object transferred. So far is the rule carried, that, even a transfer of ownership in a thing by its delivery, when unsuccessful, does not effect a transfer of the right of possession of that thing, because, in such a case, there is no consent to the transfer of possession otherwise than as incident to property. The transfer operates as a transfer of all the interest which the parties contemplate and consent to, or of no interest at all. In cases, in which property cannot pass by a transfer, there is no reason why that transfer should pass possession, which is a part and symbol of property, when neither party intended to divorce possession from property. Similarly, Mr. Wright observes that, if a sovereign " was handed to him by some one else who gave him six sovereigns by mistake for five, or the sovereign by mistake for a shilling, or who gave him. the sovereign mistaking him. for another person, then inasmuch as an essential element of change of possession by delivery namely consent to the change of possession is wanting by reason of the mistake, the reception of the possession by a voluntary act is in law a taking and is trespassory, though innocent at first. " 63. Sir Frederick Pollock, speaking- of the cases of such mistake, says, 13 that the receiver " ac- 1011 quires a possession which is provisionally distinct from possession. ' , , / , J excusable, ana becomes either rig html or merely trespassory according to the intent with which he acts on discovering the truth .... The possession, being without consent, is of a trespassory nature, but is excusable so long as it is exercised in good faith." So also Gibson, J., in Reg. v. Hehir 9 u said : " Until discovery, the relation of the taker to the chattel, which he holds without consciousness of its iden- tity, is, against the owner, custody or detention only. So far as he has acted under the mistake, he is protected. This protec- tion extends to his custody of the chattel and to his conduct in parting with the chattel if he has done so. The delivery under mutual mistake of identity does not work an estoppel in the sense that the property must be taken to pass. But the taker is excused in respect of everything attributable to the mistake for which the owner is responsible. While the chattel i Poll. & Wr. Poss., 212. | " Poll. & Wr. Poss., 107. 105, i* [1895] 2 I. B., 728. 8. 63.] RIGHTFUL POSSESSION DISTINCT FROM POSSESSION. 125 remains in the taker's hands he is under a duty to give it up on demand. His detention of the chattel till discovery is lawful ; but it is not necessary for his protection that such physical detention should be enlarged into possession, though, if he had parted with the chattel in ignorance, he would be protected even as to the property, notwithstanding that by reason of the non-existence of contract, the property had not passed to iiim. It appears to me that the lawfulness of the detention while the mistake as to identity continues does not draw with it as a consequence that upon discovery the taker can lawfully turn detention into possession and appropriate the chattel." Whatever may be said as to the qualification about the exer- cise of the possession in good faith, and the inability of the taker even on the discovery of the chattel to turn the so-called detention into possession and to appropriate the chattel, the de- tention, thus acquired, sc long as it lasts, and is not interfered with by the person giving the same, is, from the time of the discovery, a lull legal possession. ISuch legal possession is, however, essentially distinct from rightful possession or right to possession for the transfer of which consent is necessary. In contrast to the right of possessing, or as it is sometimes called jus possidendi, legal possession is held to involve a right of possession, jus possessionis. For the transfer of this mere legal possession, which is the possession for purposes of law, no act or will of the possessor is necessary. Its transfer depends entirely on the act arid will of the transferee. It may be taken by a person not only Avithout the knowledge or consent of the party having it, but even against his will. A. thief or robber is quite as much in possession of a watch as the person from whom he stole or robbed it, and that from the moment when he acquired actual power over it, and determined to exercise that power for his own sake. Taking even the strictest view of possession, his corpus and animus alone are sufficient for full possession which receives recognition, and even protec- tion, from law. Thus, in case of a physical loss of it, Roman prrctors allowed their interdicts, and modern judges also would allow its recovery, at least, in case of immovable property, without regard to the title or ownership. Such possession forms the basis of usucapio and prescription, and even, in case of movable property, its loss may put an end to the vendor's lien or right of stoppage in transitu. A person having such possession over a thing may, for the prevention or 126 POSSESSION TRANSFERRED BY PHYSECAL DELIVERY. [S. 64. compensation of all injury to it, take in his own name all civil and criminal proceedings which the law allows to an owner. Even the owner himself may commit theft of a thing from the person in possession. This is possession in the eye of the law, and it would be strange if it were not. 64". Legal possession may be transferred not only without any act or will of the person having it, but Possession may be a l so by delivery from him. Mere delivery, transferred by mere phy- -n / J & c f >. v sical delivery. W1 ^? however, effect a transfer oi it only in its physical aspect, generally desig^ nated as detention or custody. A mere physical act of deli- very can transfer the physical control of what is delivered, and for such act no intention or other mental condition is necessary. The contrary is often advanced. Thus Lord Coleridge in Reg. v. Ashwell, 15 observed : " It seems to me very plain that delivery and receipt are acts into which mental intention enters, and that there is not in law any more than in sense a delivery and receipt, unless the giver and receiver intend to give and to receive respectively what is respectively given and received. It is intelligent delivery, as I think, which the law speaks of, not a mere physical act from which intelligence and even consciousness are absent. I hope it is not laying down anything too broad or loose, if I say that all acts, to carry legal consequences must be acts of the mind ; and to hold the contrary, to hold that a man did what in sense and reason he certainly did not, that a man did in law what he did not know he was doing and did not intend to do to hold this is to expose the law to very just but wholly unnecessary ridicule and scorn." And the observation was cited with approval by several Judges in Reg. v. Hehir, 16 in which Gibson further observed 17 that "a delivery by a man in delirium or asleep, or hypnotised, would be void because unaccompanied by intelligent volition." This may be so in regard to the transfer of the right of possession in the thing delivered ; but intelligence and consciousness have no effect in the transfer of mere possession. No delivery, howsoever intelligent, can transfer possession, as apart from detention. The animus, a union of which with detention, is necessary to constitute possession, is a state of mind exclusively of the transferee. With detention transferred, it is the animus of the transferee alone that is important, and that can make him possessor. 16 Q. B. D., 224. | i [1895] II. 1. R.. 732, 735, 755, " P. 727. S. 64.] POSSESSION TRANSFERRED BY PHYSICAL DELIVERY. For this animus, knowledge and consciousness of the thing of which the possession is transferred are necessary, but only on the part of the transferee. Until he is conscious of the thing, and elects to exercise his power of control over it for his own sake, he will not have acquired possession over that thing. As observed by Cave, J., in Keg. v.Askwell, 18 a roan has not pos- session of that of the existence of which he is unaware ; and if a chattel has, without his knowledge, been placed in his custody, his rights and liabilities, as a possessor of that chattel, do not arise until he is aware of the existence of the chattel, and has assented to the possession of it. In Cart- wright v. Green, 10 and in Merry v. Green, the hidden contents of the drawer were rightly held not to have been in the possession of the receiver of the bureau till they came to his notice, though, from the moment of the receipt of the bureau, they were in his custody. The intellectual element constituting animus does not consist or admit of delivery, and it is immaterial for the transfer of the possession, whether the transferor retains it after the transfer or not. It is not even necessary that the transferor should, at the time of the delivery, or at any other time, not have a will, or have a will not to exercise his power of control for his own sake. If he had this will before the transfer of the physical control, there would be an abandonment of possession on his part, without a transfer of it to the person to whom that control has been transferred. If he should have this will subsequent to the transfer of the physical control, it would be entirely immaterial unless acquiesced in by the transferee. The contrary has sometimes been maintained. Thus, in The Queen, v. Hehir, Holmes, J., drew an argument in favor of the opposite view from the fact that the giving over of a thing to a wife or a servant does not place the recipient necessarily in possession of that thing. 21 He thus said : " A servant who, after having received without any guilty inten- tion a chattel from his master to be employed in the service, or dealt with according to the directions, of the latter, fraudulently converts it to his own use is undoubtedly a trespasser and thief at common law. Once this is admitted, it follows as a necessary inference that to constitute such a giving of possession as excludes from the taking the possibility of trespass and larceny, something more is required than mere is !6 Q. B. D., 201. 1 20 7 M. &W.,623. " 8 Ve., 405. I S1 (1895) 2 L R., 732. TRANSFER OF MERE POSSESSION. [a. e& manual or physical delivery. I cannot conceive in what this 'something more' consists, if it be not the mental intention that accompanies the outward act." This argument is clearly untenable, however. In the case supposed, the possession of a servant falls short of legal possession, because he has not simply received the chattel, but received it " to be employed in the service, or dealt with according to the directions of the master." There is, in such a cuse, not a mere physical delivery, which is sufficient, when supplemented with the necessary animus, for the transfer of legal possession ; but a delivery actually coupled with an animus on the part of the receiver to exercise the control over the property for another person. A possession such as excludes from the taking the possibility of trespass and larceny will be not possession but rightful possession, and any argument from the requirements of such a possession as to those of a legal possession can hardly be right. The " something more required" to turn the servant's detention into his possession consists, indeed, in a mental intention, but not in the mental intention of the master that must accompany " the outward act," but in the mental intention of the transferee, which he may have, at any time after "the outward act," to exercise the physical control transferred to him by that act, for his own sake, in the substitution of an animus to exercise the control over the chattel for oneself instead of that for one's master. 65. A mistake as to the object delivered, cannot affect the Mistake has no effect character of the delivery, and, there- on transfer of mere fore, the transfer of the possession of possession. that object. Whatever the character of the mistake, the possession is transferred all the same. Sir Frederick Pollock broadly observes 22 that, where an act is done under a mistake, the mistake will not prevent the act from having any eifect, which it can have by itself, and which it is intended to have by the party doing it. As an illustration of the proposition, he adds that, if A gives money to B as a gift, and B takes it as a loan, B does not thereby become A's debtor, though the money is not the less effectually delivered to B. In support of this view, reference may be made to the circumstance that, when a sovereign is given by mistake for a shilling, the giver cannot claim the return of the sovereign, and can recover only the difference, the nineteen shillings paid in excess. * a Poll. Con., 448. S. 65.] TRANSFER OF MERE POSSESSION. 129 In The Queen, v. Hehir, 23 one Leech gave to the accused Hehir, along with another note and cash, a 10 note by mistake for 1 note, and Palles, C. B., referring to the effect of the subsequent discovery of mistake by Hehir, said: "I cannot see any difference between the case here and that of a mistake in counting notes, and of a person receiving nine more 1 notes than he or the giver intended. It is quite plain that in the latter case the obligation of the receiver would have been to return nine only of the notes, and I cannot believe that there was any greater obligation upon the prisoner in the present case. For instance, had he offered to return- the 10 note upon payment to him of 1, and had Leech refused him that 1, I believe that he might lawfully have retained the 10, at least until he had a reasonable opportunity of changing it, and I further hold that if, under those circumstances, he had changed the note and tendered 9 to Leech, he would have been under no liability, civil or criminal. But if this is so, he must have had the lawful possession antecedent to the discovery of the mistake ; and whatever effect discovery may have upon his future acts, it cannot, as it appears to me, change the character of his antecedent possession, and, by relation back, render that ante- cedent possession, which at one time was his, the possession of Leech." It was contended in this case, that there could be no transfer of the possession of the note, as there would, in such a case, be no intention to transfer the note given. Apart from the non-necessity of an intention for the transference of possession, it is not correct to deny the existence of the intention in such cases. Thus Johnson, J., in his judgment in the case, said : " If Leech did not intend to give Hehir possession of the two particular bank notes, which he placed in his hand, what did he intend to give him? Admittedly, and by an 'intelligent' act of his own mind, he intended to give Hehir the possession of and also the property in one of the two particular notes : what different intention (does it in any way appear) had he then and there as to the other of these two particular notes, both of which, by the same act, at the same instant of time, he gave and intended to give into Hehir's hand ?" So also Andrews, J., in delivering his judgment, said: "If he had known it was a 10 note, doubtless he would not have given it, but, in my opinion, that only shows that his intention arose from a mistake ; it does not show that the intention did (1895) 2 I. B, 758. 17 I3Q TRANSFER OF MERE POSSESSION. [S. 6. not exist. The existence of the intention cannot be got rid of by saying, however truly, that it would not have existed if he had known what at the time he did not know, that it was a 10 note. He in fact openly and visibly handed the actual note in question to the prisoner, knowing that he was handing it to him, and the prisoner in fact took it knowing that he was taking it. In neither case can the fact and knowledge which existed be annihilated by the absence of another fact, viz.t the knowledge that it was a 10 note or by the mistaken belief that it was a l note." A similar argument in Reg. v. Middleton, a4 as to the absence of intention for the transferring of a certain amount of money, was met in a similar way by Bramwell, B. It was con- tended in the case that there was no intent to part with the property because the post-office clerk never intended to give to Middleton what did not belong to him, and the learned Baron said : " A fallacy is involved in this way of stating the matter. No doubt the clerk did not intend to do an act of the sort described and give to Middleton what did not belong to him, yet he intended to do the act he did. What he did he did not do involuntarily nor accidentally, but on purpose. . . If the reasoning as to not intending to give this money is correct, then, as it is certain that the post-office clerk did not intend to give Middleton 10s., it follows that he intended to give him nothing. That cannot be. In truth, he intended to give him what he gave, because he made the mistake." Almost every case in support of the theory that a mistake as to a thing prevents the transfer of its ownership is in favor of the view that it does not prevent the transfer of its possession. In Reg v. Hehir, Palles, C. B., pointed out that the case of Reg v. Middleton was " a distinct authority that a mistake in the subject-matter of a gift or bailment, sufficient to prevent the passing of the property in the subject- matter, does not necessarily prevent the possession passing where there has been a manual delivery." And in support of this, he relied on the passage in the judgment of the seven Judges likening the case to the delivery of a sovereign by mistake for a shilling 1 , as to which he observed that, even if it were no more than a mere dictum, unnecessary to the deci- sion of the case, it would, by reason of the number and position of the Judges who expressed it, be of the very highest 2 * 2 C. C. Res., 55. S. 65.] TRANSFER OF MERE POSSESSION. authority, but that it was more than that, and appeared to involve " the very ratio deddendi upon which, in that case, the conviction was sustained. There were two questions there, : (1), whether the property in the sovereign passed to the prisoner: (2), the wholly independent question equally important upon the matter involved if not, did its posses- sion, as distinct from the property therein, pass? The decision involved the affirmance of two distinct propositions of law, each material to the decision; 1, that the property did not pass ; but 2, that the possession did pass ; because it is admitted that it is upon this assumption only that the question whether the acceptance of the coin by the cabman could depend upon the existence of the animus furandi at the time he took the coin." 23 The contrary has sometimes been maintained, but evidently on account of a confusion between possession and rightful possession. Thus Sir Frederick Pollock, speaking of a case in which the giver intends to pass possession for a limited purpose, says, " If the receiver, knowing the giver's real intention, intends to obtain the thing in order to convert it to his own use, there is no real consent and no transfer of rightful possession. The intent with which the receiver apprehends the thing is repugnant to that with which the giver puts it in his power ; he therefore takes as a trespasser, and may be a thief. As in every case of taking by trespass (de bonis asportatis") he acquires possession in law, though a wrongful possession, as distinguished from bare physical detention or custody." 2 It was on account of the forgetfulness of the distinction between the two, that Gibson, J., in Reg. v. Hehir, observed that, as a general rule, legal possession imported knowledge and consent, and enunciated the following proposi- tions as correct: *' (1) Where delivery takes place under such common error as displaces contract, then, as between owner and taker, the owner cannot be deemed to be dispossessed or the taker possessed, until discovery and election by the latter, the intermediate relation of the taker to the chattel, as against the owner, being excusable detention only. (2) Where delivery takes place in intended performance of a supposed contract to transfer property, if, by reason of common error and absence of mutual assent the property does not pass, the owner's possession, which neither party intended to deal with as detached from property, is not lawfully divested as between the owner and the taker. 38 (1895) 2 1..R.753. | 3 Poll. ,& Wr. Poss., 101. SUBJECTIVE INCAPACITY TO CONTRACT. [8. 66. The owner's consent, necessary to legalise possession on trans- fer, must be an intelligent consent to the transfer of the particular chattel to the particular person." * 7 These propositions are correct as regards rightful possession, but have no application in regard to the transfer of mere physical possession. The confusion between the two is, however, general. In this very case oiReg. v. Hehir, Andrews, J., took a different view of the guilt of the accused, and considered that even a mistake of the denomination or value of a currency note was not a mistake of substance ; but so far as the question of possession is concerned he also appears to have shared in that confusion, and to have entertained the notion that rightful possession is the only possession in the eye of the law. He thus said that he could not at all agree " that if a man takes into his possession without reservation a chattel openly handed to him, the quality and value of which he does not know, and believes to be different from what they really are, his possession can in any rational sense be said to commence only when at some subsequent time to which no limit is assigned, he becomes aware of its quality and value. In the interval the taker is knowingly in posses- sion of the chattel in fact, and why, if he received it innocently from the owner, is not that a lawful possession ? Unquestion- ably it is not an unlawful possession, and therefore it must come to this that, though he received it unconditionally and had retained it in his sole custody in the interval he was not in possession of it at all." 28 66. Reference has been made in S. 22 to the incapacity to consent arising from the incompetency to Subjective incapacity understand the act consented to. Refer- to contract. ence is not made generally in the law of contracts to such incompetency as a necessary condition of consent, but this may be, because the law of contracts usually discusses only the vices or rather the vitiating causes of consent, which invalidate consent, and not the conditions of the existence of consent, without which there can be no consent. Incompetence to consent, whether arising from infancy, insanity or inebriety, does not invalidate consent, but interferes with its existence, and is, therefore, not discussed in the law of contracts. There are cases, however, in which there may be no natural incapacity to understand an act and therefore to consent to it, but a juridical incapacity legal or judicial, to give consent. 2 (1895) 2 I. B., 731. | 23 (i 8 95) 2 1. R. 743. S SUBJECTIVE INCAPACITY TO CONTRACT. The German Civil Code 29 thus enacts, Die Willenserklarung eines Geschaftsunfdhigen ist nichtig. Nichtiq ist auch eine Willenserklarung^ die im Zustande der Bewusstlosigkeit oder vorubergehender Storung der Geistesthatiykeit abgegeben wird. (a) And Geschciftsunfahig is said to be : 1. Wer nicht das siebente Lebensiahr vollendet hat ; 2. Wer sick in einem die freie Willensbestimmung aus- schliessenden Zustande krankhafter Storung der Geistes- thdtigkeit befindet, so fern nicht der Zustand seiner Natur nach ein vorubergehender ist ; 3. Wer icegen Geisteskrankheit entmundigt ist. (6> The Spanish Civil Code lays down that unemancipated minors, idiots, lunatics, and the deaf and dumb persons who cannot write, and in certain cases provided for by law, married women are not competent to give consent. According to the letter of the Code 30 consent given by such persons will not be consent, but correctly speaking, the incompetency to consent in these cases should not affect the existence of consent but only its validity, and thus like coercion or fraud constitute only a vice of it. In most Codes, this juridical incapacity is deemed to have no concern with and to be independent of consent, and is referred directly to the contract resulting from it. The incapacity is spoken of, not as of giving consent but of making a contract. The contract made by persons under such incapacity is held to be void or voidable, not because of the non-existence or non-adequacy of their consent, but because they have been expressly declared by law to be incapable of making a contract. This incapacity is held to arise from various circumstances, which are not the same in any two countries, and due not only to immaturity or unsoundness of intellect, but to political, social, and even professional status of one or both of the parties to a contract. On grounds of public policy, law requires in persons binding themselves by a contract a higher degree of intelligence than that of understanding the nature of the act, (a) The declaration of will of one incapable of business is null. Null is also a declara- tion of will given in a condition of unconsciousness or temporary derangement of the activity of mind. (b) 1. Who has not completed his seventh year of life : 2. Who 13 in a condition of diseased derangement of mental activity, excluding the free determination of the will, as far as the condition, according to its nature, is not temporary. 3. TV ho on account of mental derangement is placed under another's control. 98 S. 105. I 3 S. 1263. 134 SUBJECTIVE INCAPACITY TO CONTRACT. [S. 66. and does not allow to their consent and agreement the bind- ing effect of a contract, unless they are able to understand not only the act and its nature but also its effects and conse- quences on their interests. Not satisfied with the natural incompetency of consent, the law of contracts recognizes what may be called legal minority and insanity as the most prominent forms of the contractual sub- jective incapacity. To avoid the difficulty of arriving at a deci- sion in each case in regard to the existence or non-existence of sufficient mental intelligence, and feeling certain that, as a general rule, persons become competent to form a rational opinion as to the effect of acts on their interests about the same age, the law of each country recognizes or fixes that age as the age of majority, after attaining to which they may be able to enter into contracts. The certainty thus attained is considered sufficient for all practical purposes. No such certainty can, however, be attained in regard to insanity. The Indian Law lays down a general criterion in regard to it, by providing that " a person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests." 31 Most systems of law do not consider this criterion sufficiently definite and satisfactory, and require a more certain test of the incapacity; as, for instance, that of a formal interdict by a court, the interdict in such cases being not the cause of the incapacity, but a conclusive evidence of it until it is duly superseded c Any such test will, however, exclude intoxica- tion, which, while a person is deprived of reason on account of it, is generally deemed sufficient to avoid a contract. Various forms of the natural incompetence of a lighter sort are also recognized by law as personal disqualifications for entering into a contract, but they are too indefinite to be determined by any general rule of law, and their recognition is made to depend on a declaration by the .Executive as in India, or on a judicial order as in the case of the inabilitati in the Italian Law. These causes of incapacity, both legal and judicial, are in the main, for the protection of individuals, and to be distinguished from those grounds of disqualification which are for the protection of the society. As instances of these latter, reference may be made to alienage or foreign nationality, to the married condition of a female, to the pro- si S. 12, Act IX of 1872. 8. 66.] SUBJECTIVE INCAPACITY TO CONTRACT. fession of a barrister-at-law or physician, and to penal condem- nation, which all have been and still are recognized in the English Law, to a greater or less extent, and absolutely or subject to certain conditions. Competency of these persons to understand or consent to any act is never denied, and the disqualification to enter into contracts rests on considerations of an utterly different character. The effect of these two sorts of disqualification is not quite settled, but appears to be different. In the case of the latter, the contract entered into is generally held void. In the case of the former, as a general rule, only the person incompetent can take advantage of his incompetence, and a contract entered into by him will not necessarily be void, but one that may be ratified or avoided by him on the cessation of the incompetence. The French Civil Code thus enacts : Les incapables de contrac- ter sont : lesmineurs ; les interdits ; lesfemmes mariees, dans les cas exprimes par la loi; et gencralement tons ceu.x a qui la loi a interdit certains contrats, 32 but that " le mineur, Vinterdit et la femme mariee ne peuvent attaquer, pour cause $ incapacity leurs engagements, que dans les cas prevus par la loi. Les per- sonnes capables de s'engager ne peuvent opposer Vimapacite du mindir, de V interdit ou de la femme marie,?, avec qui elles ont contracted The Italian Civil Code enacts the same, but specifies the inabilitati as among the incompetent, and expressly adds that I'mcapacita perb derivante da interdizione per causa di pena si pub opporre da chiunque vi ha interesse.^ (f] This last exception is enacted by the Louisiana Civil Code also. 35 It has been maintained in Italy that the Code has specified only cases of legal incapacity, as La conclusions di un serio accordo giuridico con psrsona incapace naturalmente e un caso tanto fuori del mondo, che illegi^latore, il quale si occupa soltanto de eo (piod plerumque fit, ha creduto msglio di non parlarjie, ed ha pretermesso quad come inutile ogni disposizione in proposito. (9} Notwithstanding the silence of the Legislature, natural incapacity (f) However, the incapacity derived from interdiction on account of penality can be opposed by any one who has interest in it. (p) The conclusion of a serious juridical accord with a person naturally incapable is a case so much outside the world that the legislator who occupies himself only with that which often happens has believed it to be better not to talk of it, and has omitted all dispositions concerning it as useless. Since without the natural capacity of contracting there is no power of consenting, the absence of such capacity is always attended by the radical nullity of the contractual tie, or, to speak otherwise, is opposed to the existence of the obligation. 32 S. 1124. s* S. S. 1106, 1107 33 S. 1125. 35 Art. 1796. a" IV Giorg. Teo. Obbl., 6. 13(5 SUBJECTIVE INCAPACITY TO CONTRACT. [S. 66. disqualifies a person from contracting. Poiche senza capacita naturale di contrattare non vi lia potenza di consentire^ il difetto di tale capacita va sempre congiunto con la nullita radicate del vincolo contrattuale, o, come altrimenti si dice, osta alia sussistenza della obbligazione^ there being left to ai primipii generali delta scienza la cura di governare Vincapacita naturale : guella in- capacita die senza ministero di legge scritta^ ma in virtu dei canoni immutabili e necessarii della equita naturale, deriva dal difetto della potenza di consentire. (r) Under the English common law, contracts by infants, 87 and insane and drunken 38 persons were held only voidable and not void. In the case of the latter it appears now to be the rule, that the contract will not even be voidable, unless the insane person " can prove further that the person with whom he contracted knew him to be so insane as not to be capable of understanding what he was about." 39 In regard to the contracts by an infant, distinctions have been made on the ground of their nature or their effect on the minor's interests, a different rule being applied according as they were purely for his benefit or for necessaries, or to his detriment and dis- advantage. The Common Law rule has been modified materi- ally by the Infants' Relief Act, 1874, which provides as follows : " All contracts whether by specialty or by simple contract henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries) and all accounts stated with infants, shall be absolutely void : provided always that this enactment shall not invalidate any contract into which an infant may by any existing or future statute, or by the rules of common law or equity enter, except such as now by law are voidable. No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." The Indian Contract Act goes still further and enacts that an agreement may be a contract, only if made by the free consent of parties competent to contract ; 40 and that no person shall be (;) To the general principles of science the care of gOYerning natural incapacity, which incapacity without being ministered to by written law, but in virtue of immutable and necessary canons of natural equity arises from the defect of the power of consenting. 37 Williams r. Moor, 11 M.& W., 265. I ** Imperial Loan Co7 ss Mathews r. Baxter, 8 Exch., 132. I Q. B. 601 40 S. 10, Act IX of 1872. S. 67.] CONSENT DISTINGUISHED FROM FKEE CONSEKT. J37 so competent unless he is of sound mind and of the age of majority according to the law to which he is subject, and not disqualified from contracting by any such law. 41 It has been held even under this Act on the analogy of the English law, that a contract entered into by a minor is not necessarily void, and may be enforced by him. 42 The question of the exact effect of incompetence of the parties on the contract does not depend in any way on the analogy of the vice of consent, and need not therefore be discussed in this treatise. 67. In the law of torts, also, it is the free consent of a person that prevents the harm caused to Consent distinguished him bei a wrong . j t does not appear to from free consent in law n , . -, . , , , r f f O f tortgt be explained in any work on the law of torts, when consent is said to be free ; but it is observed by Sir Frederick Pollock, that on general principles, it is too obvious to need dwelling upon, that the license obtained by fraud is of no effect. As an illustration of this principle, reference is often made to the case of Davies v. Marshall in which the action was for obstructing light from entering the plaintiff's house, for preventing the smoke from being carried off from the plaintiff's chimneys, by raising buildings in the defendant's land above the level of the plaintiff's house, for depriving the plaintiff's house of support by pulling down certain adjoining buildings of the defendant ; and the consent to the building which caused these injuries to the plaintiff's house was held not to be a defence, on the ground that it had been given on account of false representations made by the defendant that these injuries would not result from the defendant's act of building, &c. There appears, however, to be nothing in the court's decision to support the view that consent obtained by fraud was treated as not being consent at all. In Johnson v. Girdwoodf* consent to a wrong induced by fraud, duress or conspiracy, was said to be no answer to an action upon the wrong by the party so consent- ing against the party who procured the consent. Mr. Tnnes in his work on the principles of the Law of Torts 43 speaks of valid consent, and says that a person is not said to give valid consent to the conduct of another, as it affects him, when he is deceived as to the facts upon the statement 41 S. 11. Act IX of 1872. I *3 10 C. B. N. S., 697. *" Sashi Bhusan r. Jadu Nath, I. L. E. i ** 28 N. Y. Supp., 651. XI Cal., 552 ; Hanmant v. Jayarao, I. L, R. XIII. Bom., 50. 18 S. 11. CONSENT DISTINGUISHED FROM FREE CONSENT. [8. 6fe. of which his assent is based. The effect of force or threats on consent is not referred to at all, though it is said that consent will not be valid even when it is unintelligent. 4G It is evident that a consent not valid is not the less a consent, and that fraud is not deemed to affect the existence as distinct from the adequacy of consent, because a consent to the doing of anything unlawful is also held to be invalid, and it is impossible to deny the existence of consent in that case. In a well considered article on consent in the Madras Law Journal, 47 it is pointed out that " while a want of real consent may in some cases notwithstanding an apparent consent have the effect of rendering an agreement void, such real w ant of consent will not render a person liable for a tort if he has been induced to act by an apparent consent of the other party ;" and that " the reason for this difference is to be found in the fact that while in the law of contracts consent is a source of right, it is a ground for exemption from liability in the law of torts, while the law may justly require stricter proof of real consent in the case of contracts it is satisfied with proof even of apparent consent provided the party acting upon the consent has no reasonable cause for suspecting that the consent is only apparent." There may be no objection to this proposition if the words real and apparent, as applied to consent, are taken to refer only to free and not free, to valid and invalid respectively, that is to denote merely the absence of some qualification necessary to render consent operative in the law of torts. There appears, however, to be no authority in support of that proposition, if those words are held to refer, as they appear to do, to the existence or non-existence of consent itself. 68. The question of the distinction between a consent and a free consent has great importance in the Consent distingimheJ criminal ] aw and has j^ t Hfi from tree consent in * .. . r~, criminal law. * discussion there. 1 here are dicta in favor of the view that a consent not suffi- cient for the purposes of criminal law is not real consent. Thus inReg. v. Woodlmrst, iB Lush, J., in summing up to the jury observed: "Consent means consent of will, and if the child ('just above 10 years of age) submitted under the influence of terror, or because she felt herself in the power of the man, her father, there was no real consent." As observed in Astley v. Reynolds 49 the rule volenti non fit hijuria is applied only where the party had * s. 10. * v. in. * s 12 Cox. C. C , 443. 49 2 Strange, 91."). S. 68.] CONSENT DISTINGUISHED FROM FREE CONSENT. his freedom of exercising his will. In Reg. v. Dee Lawson, J., said that "to constitute consent there must be the free exercise of the will of a conscious agent ; and therefore, if the connection be with an idiot incapable of giving consent, or with a woman in a state of unconsciousness, it is rape ; in like manner if the consent be extorted by duress or threats of violence it is no consent." It appears, however, never to have been directly held that consent for its existence as such, requires anything other than concurrence of wills. On the other hand, English jurists in some cases directly treat consent as a simple fact, holding that the consent even of a child to an act which will otherwise be an assault, prevents the act from being indictable. Thus actual consent is often contrasted with legal consent, and held to exist where legal consent could not be given. * Bramwell, B., in Reg. v. Middle fan, 2 observed that there was " certainly a difference between the privy taking of property without the knowledge of the owner, or its forcible taking, and its taking with consent by means of a fraud. The latter, perhaps, may properly be made a crime ; but it is a different crime from the other taking." The preamble to the statute 33 Hen. 8, c. 1, draws a distinction between goods taken by stealth, and goods " delivered by the owner willingly, on being deceived by false tokens." Sir James Stephen in his Digest of Criminal Law does not say. that only a freely given consent is consent, but merely that for the purpose of Articles 225-230 of the Digest, dealing with the effect of consent on bodily injuries, " the word consent means a consent freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which he consents;" and that " consent is said to be given freely when it is not procured by force, fraud, or threats of whatever nature." 3 On the other hand, speaking of certain acts constituting an assault, he says that the acts must be "without the consent of the person assaulted, or with such consent if it is obtained by fraud." 4 Similarly in speaking of abduction, he says: " If the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such person." 3 If consent obtained by fraud were considered so 15 Cox. 0. C., 579. 1 Reg. v. Bead, 1 Den. C. C., 381. Reg. v. Webb, 2 Car. & K., 933. 2 2 C. C. Res., 54. 3 Art., 224. Art., 279. * Art., 262. 140 CONSENT DISTINGUISHED FROM FREE CONSENT. [8. 68 by Stephen as no consent, there could be no necessity or occasion for these provisions. In Whittaker v. State, 6 Orton, J., in delivering the opinion of the Supreme Court of Wisconsin, said : " When the mind is subjugated as well as the body, so that the power of volition and the mental capacity to either consent or dissent is gone, then the act may be said to be ' against the will,' and so also it may be said to be 'without consent.' But when the mind is left free to exercise the will, and to con- sent or dissent, then by consent responsibility for the act is in- curred. Where there is no such mental capacity, the quality of the act is indifferent ; there can be no consent or dissent, and consequently no responsibility. The physical power may be overcome, and the utmost resistance be unavailing ; yet the mind may remain free to approve or disapprove, consent or dissent." Livingston's Penal Code, after laying down that " whoever enters a house secretly, or by force, or threats, or fraud, during the night, or in like manner enters a house by day, and conceals hi uself therein until the night, with the intent in either case of committing a crime, is guilty of the crime of house- breaking," provides that : " the qualifications of secrecy, force, or fraud, as applied to the entry, in the description of this offence, are intended to exclude every kind of entry but one made by the free consent of the occupant, or of one authorized to give such consent for him, fairly obtained and expressly or impliedly given." 7 This is evident chiefly from the treatment of the offence of rape. Thus the Criminal Code of Canada, the latest code passed after a long practical experience of several other codes, defines rape 8 as " the act of a man having carnal knowledge of a woman without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman's husband, or by false and fraudulent representations as to the nature and quality of the act." The German Penal Code clearly distinguishes the offence of sexual intercourse with a woman while she does not or cannot consent, from that when she does consent but on account of his fraud. The former is punishable under s. 1 76, which provides the punishment of penal servitude up to ten years for any per- son, who (1) Mitfieicalt unzuchtiye Handhmyen an einer Fraueus- person rornimmt oder dieselbe durdi Drohwtg mit gegen- "VSQ Wi8. ; r,18. | Arts. 605, 606. | 8 S. 206. S 69.] CONSENT DISTINGUISHED FROM FREE CONSENT: } : |1 wiirtiger Gefahr filr Leib oder Leben zur Duldmuj unziichtiger Plandlunyen nothigt oder ; (2) Eine in einem willenlosen oder bewusstlo&n Zustande befindliche oder eine geisteskranke Frauensperson zum ausserehelichen Beiscnlafs miss branch t. (r<>) a manifesto-re la colonta, ma la mqnifestano accitJen- perche incompatilnU con colonta diversa" (<) It is thus on the principle of contradiction that the efficacy of tacit potra piu park expression is called indirect, and the consent thus expressed as implied or tacit. The signs and acts generally used in giving the expression are positive. They may assume a negative form also in the shape of silence, which is often significant upon the question of a man's intention. It is a general saying, that intention " is manifested by what he does, and by what he says when, doing ; and sometimes as significantly by what he omits to do or to say." That silence may be equivalent in some cases to speech is recognized in the Indian Contract Act. 17 The principle relating to the inference of consent from silence (A) It is of. such a false expression of consent, that Mr. Bealc, Jr., speaks in his Article on consent in the Uuncurd Law Review 9 when he speaks of a " seeming consent extorted by force or terror," in which " the body is forced to act without a real agree- ment of the mind." The Madras Law Jtninud 10 in its review of that article evidently takes this observation to refer to consent itself, \vhen observing that even Mr. Beale admits that li consent extorted by force or terror i ; no r&al consent," it goes on to argue that consent given under a, fundamental error must it fortiori not be real consent. (j') Which are not destined according to their nature to manifest the will, but manifest it accidentally because of their incompatibility with a different will. {/) Consent is inferred, because dissent would be in contradiction with the facts. (//) Remove the incompatibility, and you will not b:> able to talk any more of consent. fl VIII., 331. 10 V. 111. 50 Wis., 518. 14 III. Giorg. Teo. Obb)., 190. 13 III. Giorg. Teo. Obbl.. 192. De Bonneval c. De Bonneva! ia III. Russ. Cr.. 25. Curt., 8".6. 13 III. Giorg. Teo. Obbl., 151. i Act IX of 1872, S. 17, Expl. 19 SILENCE MAY BE CONSENT. [8. 72. is of a most general application. The Arabian prophet observing that a virgin must be consulted in everything which concerns herself, said: " if she is silent, it signifies assent ;" and Mahomedan jurists of all the schools hold that smiling, laughing, or remaining silent must be construed to imply consent. This is, no doubt, partly as her assent is rather to be presumed in cases in which modesty must be a bar to an express declaration by her of her wish, but the operation of the saying is not restricted to the case of marriage, and extends also to other contracts between adults. Thus, Najim-al-Misri, author of the Ashabah-van-naz r. Siwr, 30 N. Y., (\51. Ss. 74, 75.] CONSENT MAY BE IMPLIED IN NON-C'ONTUACT LAW. ^49 chants and traders, with a multiplicity of transactions pressing on them, and moving in a narrow circle, and meeting each other daily, desire to write little, and leave unwritten what they take for granted in every contract. " 74. And as in the law of contracts, so consent may be im- plied in non-contract law. Sir Frederick Consent may be implied p oUock o ft eil referring to themaxim in non-contract law. .... & , , , , ,, ,. volenti nonjit injuna and to the defence of leave and licence, observes that neither " provides in terms for the state of things in which there is not specific will or assent to suffer something which, if inflicted against the party's will, would be a wrong, but only conduct showing that, for one rea- son or another, he is content to abide the chance of it. " 35 This, however, does not indicate that consent must always be in words, and the learned author immediately goes on to observe that the case of express consent is comparatively rare in our books. As a fact, in the common intercourse of life between friends and neighbours, tacit consent is constantly given and acted on. In the law of wrongful trespass, for instance, a license to enter on land may be interred from entries made in course of friendly visits extending over a long period of time. 30 So also consent is often presumed from absolute necessity. Thus a mere agreement to sell does not necessarily import a license to enter 011 the premises ; 37 but if a man makes a lease reserving the trees, the law will implv a consent tD his entering: and * I / fj shewing them to the purchaser. 75. This is admitted by judges as well as legislatures in the criminal law also. Thus in McQuirk tSgi law."" " - *<"." . Seville J., aid :-" The consent given by the prosecutiix may have been implied a^ well as express, and the defendant would be justified in assuming the existence of such consent if the conduct of the prosecutrix towards him at the time of the occurrence was of such a nature as to create in his mind the honest and reasonable belief that she had consented by yielding her will freely to the commission of the act. Any resistance on the woman's part falling short of this measure would be insufficient to overcome the implication of consent." So also Art. 628, of Livingston's Criminal Code for Louisiana, :!1 Humfrey r. Dale, 7 E. & B., 266. : ' 5 P...11., Torts, 144. 11 Martin r. Huughtoii, 4"> Hark, ^' 39 84 Ala.. 435. tflestoii . Ky. Co.. ?5 Barb , 162. Kagan r. Scott, 14 Hun., 162. s Harmon >: Hniiuon, 61 Me., U22. 150 CONSENT MAY BE IMPLIED IN CRIMINAL LAW. [8. 76- expressly provides that in case of offences relating to property, consent is presumed to have been given, whenever the considera- tion is received, and the property is let, or put in the power of the person to whom by the purport of the contract it appears to be transferred, although such consideration should prove worthless or fraudulent. It is also presumed to have been given Avhenever credit has been given for the price, however short the time. In the Indian Penal Code it is expressly provided in regard to most of the cases in Avhich consent may form a justification for the commission of a criminal act, that the consent may be express or implied. 40 The only occasion in which the word consent is used without the qualification of " express or implied " is the last clause of S.87, which is evidently not to be construed without reference to its first clause. In the definition of theft also, it is expressly provided that the consent mentioned in the definition may be express or implied. There is no such mention, however, in the definitions of criminal force, kidnapping and rape ; and it may be argued that though ordinarily the word consent includes implied as well as express consent, yet the mention of consent being " express or implied " in some cases, must be deemed to warrant the inference that in other cases express consent is required. The omission wherever made ap- pears to be made inadvertently, and it does not appear that implied consent will not be deemed to be consent in any section of the Code. 76. The expression implied consent is, like implied contract, sometimes applied to cases in which there Implied consent dis- - g no consen t but the existence of consent tinsruished from con- . j r u_ i T xi strnctive consent. 1S presumed as a iact or by law. In the former case, consent Avould have been given if asked, and the presumption is made on account of the probabilities of human conduct : and the absence of consent is due only to accidental causes, for instance, to the non-presence on the spot of the j)erson whose consent is in question. In the latter case, there is an utter incapability of valid consent, and no asking would have obtained it ; and consent is not so much presumed to actually exist, as held to apply on account of the beneficial tendency of the act in question. In the former case, consent may thus be designated as presumed, in the latter as constructive. < S-. 87, 88, and 89. S. 76.] IMPLIED CONSENT DISTINCT FROM CONSTRUCTIVE. ] 5 J As to the former, Giulio Crivellari speaking of theft in his work on Fundamental conceptions of law, says : 41 SI discute se possa valere anche il consenso presunto, e si sostiene die incircostanze eccezionali potra questo consenso valere ad escludere il dolo quando la buona fede del contrettatore proceda da una giusta credidita, specie ore sia rac/ionata sopra rapporti di particolare amicizia, scompagnata da mistero o violenza, e susscguita daUa restituzione. Vannuenza tacAta o presunta del proprietario fa cessare il furto, perche si suppone che chi prende la roba abbia ragione di credere che il proprietario acconsenta. (o) Francesco Carrara also after observing broadly that tacit consent excludes malefizio, lays down the ame qualified rule in regard to the presunto. 42 This sort of consent is recognized expressly in the Indian Penal Code in the illustration (in), attached to S. 378 of the Indian Penal Code, which provides that A, being on friendly terms with /, goes intp Z's library in Z's absence and takes away a book without /'s express consent, for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z's implied consent to use Z's book. If this was A's impression, A has not committed theft. There would, of course, bo no occasion for any such presumption of consent, if Z were present and could be referred to at once, and the book were taken away without his knowledge, and without reference to him. In cases where law contemplates consent, as apart from belief of consent, as is usually the case in the law of larceny in England, the legal operation of consent will not be allowed to any legal presumption of consent which may be warranted by the circumstances. This was evidently the basis of the decision in Com v. Buttericfc^ on the authority of which Mr. Rapalje, in his work on Larceny, says : 44 " While the express consent of the owner of the property to the use of it made by defendant would be a good defence, yet upon trial of one charged with embezzlement of property deposited with him for another purpose, by pledging it as security for his own debt, it is immaterial that the relations between (<) People discuss if a presumed consent ran also hold good, and maintain that in exceptional circumstances this consent can be good enough to exclude doliut, when the pood faith of the person removing (the thing) proceeds from a, just credulity, specially where it may he inferred from the relation of particular friendship, free of (all) mystery or violence, and followed by restitution. The tacit or presumed assent of the proprietor prevents there being theft, because it is supposed that he who takes the thing has reason to believe that the proprietor would consent. 41 Criv. Concet. Fond., Art. 1671. ** Catr. Prog., Art. 2034. < s 10) Mass., 1. ** P. 533. 152 CONSENT IMPLIED FROM NON-RKSISTAXCE. r S. 77. the owner and the defendant were such that the latter had a right to presume that the owner would ratify such a use of his property, or that he would have consented to such a use of it if he had been asked at the time, or that at the time he deposited it with defendant he bad no objection to such a use of it by him ; and questions asked of the owner as a witness, to prove these facts, were properly excluded." In case of constructive consent, there is no act warranting an inference as to the existence of consent, and in fact, ex //////"- fhesi, there can be, no consent ; and a presumption of consent by law means only that notwithstanding the absence of consent to the act, the law treats the case, as if there were consent to it. Surgical operations in cas^s of sudden collapse or unconsciousness on account of violent hurt, are sometimes excused on the ground of such consent. In some systems of law. such consent is not. recognized at all ; but wherever recognized, it must be careful 1\ distinguished from real conssnt. from which it differs a- a quasi - contract differs from a. real contract, and designated quasi-con- sent or constructive consent. 40 77. Submission as explained in Sec. II. is not consent. It mav, however, be evidence of consent. Consent implied from h ; ' , hetl er it wi)1 ^ sufficient evi- non-resistance. t , - -n ^ , dence of it in any case, will depend on tae circumstances of that case. Speaking of rape, Coleridge, .).. observed in Rx/. v. Dai/. 1 ' that " it would be too much to sa,\ . that an adult submitting quietly to an outrage of this description, was not consenting ; on the other hand, the mere submission of ;i child, when in the power of a strong man, and most probablv acted upon by fear, can. bv no means, be taken to be such a consent MS will justify the prisoner in point of law-." So strong is the effect of non-resistance, that it has even been held, that though a woman object in words to a man's intercourse with her, yet if she makes no outer v and no resistance, she must be held by her conduct to consent to the intercourse. 47 This presumption mil have no place, however, in case of a child, as absence of outcry can, in any case, be only an indication of consent, and cannot constitute consent itself. 48 In Conner* \ . Xfaf ' Lvon. J., said, that " voluntarv submission of the woman, while she has power to resist, no matter how reluctantly yielded, removes from the act an essential element of the crime of rape If the *"' limes Torts. S. 10. " enter her bed, she has perhaps expressed her refusal to consent to the unlawful cohabitation to a great an extent as the law will require, before holding the unnatural ravisher to the law's penalties." The present doctrine in fact appears to be that if the woman's will is subdued to submission by duress or menace, the inter- course must be deemed to be against her will, 9 and that where the woman is paralyzed from fear and terrified into submission this submission and failure to make resistance or outcry will whether or not the limit of her strength had been reaohed. They could never ascertain to any threat degree of certainty what effect the excitement and terror may have neon her physical system. Such excitement takes away the strength ot' one", and multiplies the strength of another.*' i 1 1 Mass., 405. \ Pollard r. State, 2 Iowa., 507. 82 Va.. 107. State ?. Ruth., 21. Kan., 583. I. 77.] CONSENT IMPLIED PROM NON-RESISTANCE. not constitute consent, and the intercourse shall be rape not- withstanding. 10 Thus in Rgg. v. /fallet, 11 Coleridge, J., in gumming up to the jury said : " That the offence of rape would not have been committed, if there was non-resistance on her part, but that non-resistance proceeded merely from being overpowered by actual force, or from her not being able from want of strength to resist any longer, or that from the number of the prisoners she considered resistance dangerous and absolutely useless." In Hul>er v. State the Supreme Court of Indiana indeed observed, that " Resistance or opposition by mere words is not enough. The resistance must be by acts, and reasonably proportionate to the strength and opportunities of the woman." But McCabe, J., in delivering the opinion of that Court in Randiottom v. State after quoting that observation, said: "When, however, fear or violence overcomes resistance, a different rule applies. '] here was evidence from which the jury were justified in believing that resistance was prevented by fear produced by appellant's threats, taking into consideration, as they had a right to do, the circumstances of getting her to the lonely, strange house, late in the darkness of the night, all unexpected to her, whereat she was the only female, surrounded by a trio of strange young men ; and that she had been brought there under base, false pretences, practised on her mother and herself by one of the trio, with circumstances pointing suspiciously at the other two as at least cognizant of the fraud, if not accom- plices; she being but a mere child, inexperienced, and ignorant of the true relation of the sexes, barely over the age fixed by law at which consent implied from non-resistance takes out of the act the deep, dark, felonious hue. These circumstances, together with her size, appearance, and her intelligence, were all proper matters to be considered in determining whether resistance on her part was rendered less effective or wholly averted by fear. The evidence was of such a character as to justify the jury in finding that it was. The case of Eberhart v. State, u and numer- ous authorities there cited, are very much in point here, and support the conclusion here reached." Dr. Bishop broadly observes that "violence inflicted by the man on the woman, producing unconsciousness, or overcoming her 10 People r. demons, 37 Him-, 581. Pleasant r. State, 13 Ark., 3tK. Sharp r. State, 15 Ter. \pp., 171 l 9 C. & P., 751. 12 120 Ind., 186. 134Ind.,65l. 43 N.;E. Rep., 218. CONSENT IMPLIED PROM NON- RESISTANCE. [. 77. mind by fright, will render his carnal act rape, though she makes no resistance." 15 In Greenleafs work on Evidence, it is laid down that "the better rule is that it is not necessary that the woman should use all the physical force she has in resistance, but the resistance must be real, and must have been overcome by the force of the defendant." 10 If her refusal to consent was honest and she was indeed earnest therein, she might resort to remonstrance, to pro- mises, or to a variety of other means, rather than to an expendi- ture of physical strength which she knew would be useless. 17 But to rebut the presumption of consent, the resistance must not be a mere pretence, but in good faith. 18 Where the resistance by the woman is of so equivocal a character as to suggest actual consent, or a not very decided opposition, a conviction for rape cannot be sustained. 19 In Curbij v. Territory?" it has recently been held that sexual intercourse with a woman of discretion, to constitute rape, must be accomplished after resort by her to every reasonable means at hand to prevent the act ; and if she remains neutral or passive, the offence is not committed. The French law also is the same. There also it is necessary that the violence should have been entire and complete, that no hesitation of the victim should have corne to its aid, and that she should have ceded only to force. 31 On account of the difficulty of establishing this violence, there also the jurists established certain presumptions, whence they inferred its existence. It was thus considered necessary for rape : (1) qu'une resistance constante et toujours egvle ent cle opposce par la perxitnue pretendne rioti? ; car il suffit au evident inequality betwecu her forces and those of the assailant, for one cannot suppose that there is violence when she ha.l means of resistance an) Useful precautions collected by experience for help in the discovery of truth. 83 IV. Adolph. & Helie, 315. 1 24 Hurl. & N., 276. 95 22 Q. B. D., 23. OBLIGATION TO SUFFER AN ACT NOT CONSENT TO IT. [g. 78. sent. A sis said by Lord Hale in his Pleas of the Crown : 25 ' By their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.' ' The contention was, however, not accepted. Field, J., said : " There may be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime. Suppose a wife for reasons of health refused to consent to intercourse, and the husband induced a third person to assist him while he forcibly perpetrated the act. would any- one say that the matrimonial consent would render this no crime ? And there is the great authority of Lord Stowell for saying that the husband has no right to the person of his wife if her health is endangered." The question was fully dis- cussed , however, by Hawking J., who said : u By the marriage contract a wife no doubt confers upon her husband an irrevocable privilege to have sexual intercourse with her during such time as the ordinary relations created by such contract subsist between them. But this marital privilege does not justify a husband in endangering his wife's health and causing her grievous bodily harm, by exercising his marital privilege when he is Suffering from venereal disorder of such a character that the natural consequence of such communion will be to communicate the disease to her In my judgment wilfully to place his diseased person in contact with hers without her express consent amounts to an assault. It has been argued that to hold this would be to hold that a man who suffering from gonorrhoea has communion with his wife might be guilty of the crime of rape. I do not think this would be so. Rape consists in a man having sexual intercourse with a woman without her consent, and the marital privilege being equivalent to consent given once for all at the time of marriage, it follows that the mere act of sexual communion is lawful : but there is a wide difference between a simple act of communion which is lawful, and an act of communion combined with infectious contagion endangering health and causing harm, which is unlawful. It may be said that assuming a man to be diseased, still as he cannot have communion with his wife without contact, the communication of the disease is the result of a lawful act, ami, therefore, cannot be criminal. My reply to this argu- ment is that if a person having a privilege of which he may avail himself or not at his will and pleasure, cannot exercise it S. 79.] CONSENT IMPLIED TO NATURAL CONSEQUENCES. without at the same time doing something not included in this privilege and which is unlawful and dangerous to another, he must either forego his privilege or take the consequences of liis unlawful conduct. . . . The sexual communion between them is by virtue of the irrevocable privilege conferred once for all on the husband at the time of the marriage, and not at all by virtue of a consent given upon each act of communion, as is the case between unmarried persons. My judgment is based on the fact that the wrongful act charged against the prisoner was not involved in or sanctioned by his marital privilege and for which no consent was ever given atall. . . . The wife submits to her husband's embraces because at the time of marriage she gave him an irrevocable right to her person. The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part, butis mere sub- mission to an obligation imposed upon her by law. Consent is immaterial. In the case of unmarried persons, however, con- sent is necessary previous to every act of communion, and if a common prostitute were to charge with a criminal offence a man who in having connection with her had infected her with disease, few juries would under ordinary circumstances hesitate to find that each party entered into the immoral communion tacitly consenting to take all risks." 79. A person's consent to an act is generally deemed to be a consent to the accruing of all its Consent to an act natural arid ordinary consequences as icnplies consent to its haye b(Jen ^j^ ,- knowledge natural and contemplated ,- t .. , r t , f *? consequences. an( ' contemplation, in tact, "tor Simpli- city's sake we commonly reckon the immediate and usual consequences of an act, when to all appearance they are intended and follow as intended, as part of the act itself. In the act of shooting, for example, the man's own act stops, if we are to speak with strict precision, at pul- ling the trigger, but the discharge of the gun in the direction given to the barrel by the man's aim is counted as part of the act." 26 The consent to an act must necessarily extend to all such consequences of the act. Even Kessler, referring to his general illustration of A permitting another to shoot at something of his with a bet as to the non-success of the shot, admits that A tviirde die Zerstorung der Sache nur dann yeicollt haben, wenn er sie als elm sichere Folge des Schusses vorausgesehen hatte. 27 (t) (*) A would only then have willed the destruotion of the thing, if he could have fore- seen that as the certain consequence of the shot. a Poll, Jur., 147. | ar Kess, Einw., 25, 162 CONSENT IMPLIED TO NATURAL CONSEQUENCES. [8.79' Consent cannot extend however to the other consequences of the act. In regard to them, Kessler adds : So kann man hochstens noch von einem Zulassen des Erfolges reden. Das " Wollen Mussen" aller moglichen Folgen, icenn man die Ursache wolle, welches Rddenbsck* als gleichwerthig mit dem Wollen behauptet, ist, wie Halschner zutreffendbemsrkt,eine Vergewalti- gung des Begriffs. (t) Kessler goes on to observe that it is even possible that A to prevent B's success in the bet may do something to prevent the shor, which he has consented to, really taking effect. Auoh dann wilrde nach wie vor erne icegen EinwUligung des Verletzten strqflose Sachbeschfidigung vorliegen. Es w'urde aber gegen den Sinn der Sprache sein, in diesem Falle zii behaupte.n, A habe die Zer stoning der Sache, die zu hindern er thatlich bemuht gewesen ist, gewollt, oder auch nur in dieselbe eingewiUigt. ( ' 2S Even the necessary consequences of au act are, however, really separate from that act, and therefore the consent to the consequences is really only a result of the consent to the act by implication, and not identical with the consent to the act itself. s darf aber auch ein Wollen des vzrletzenden Erfolges nicht in die Definition aufgeuommen werden, (e} Strictly speaking, there can indeed be no consent to the conse- quences of an act as distinct from the act. Mann im strengpn psycologischen Sinne ein Ereignissiiberhaupt nicht wollen kannf** and in speaking of a consent to the consequences, the expression is understood in its popular metaphorical signification. Thus understood the doctrine is generally agreed upon. For example, in The Eeg. v. Clarence, 29 Field, J., said : " Had then, the harm inflicted upon or occasioned to the prisoner's wife been one of the consequences of an ordinary natural and (t) We can, at most, speak of his having taken into consideration the possibility of the e\ent. The being bound to will all the possible consequences when we will the cause, which Ei3denbeck maintains as equivalent to willing, is, as Halschner correctly remarks, a violent use of the conception. (?/) Even now, as before, there would be mischief which would not be penal on ac- count of the consent of the injured party. It would be, however, against the sense of the langfiage, to maintain in such a case, that A had willed or even consented to the destruction of the thing, whereas he had actually given himself trouble to prerent it. (r) A willing of the injurious consequences dare not, however, even be taken into the definition (of consent). (to) la the strict philosophical sense, we cannot at all will an event, ss Kess, Einw., 35, j 29 92 Q. B. D., 58. 8.80.] IMPLIED CONSENT TO CONSEQUENCES IN CONTRACTS. healthy connection, or had she known or had reasonable grounds for thinking that, her husband was in a diseased con- dition, her consent to the consequences would, I think, be implied, and so no offence would have been committed. In the same way I think that, if a man knowingly consorts v ? ith a prostitute who gains her livelihood by promiscuous intercourse, it may well be implied that he accepts all the consequences. Also, had the prisoner in this case not been aware of his condition, his act would not have been malicious or an assault, for, as he would have had no reason to suppose that his wife would do other than consent, he would have a right to act upon the implication." In some cases, the doctrine has been carried too far. It has, for instance, been held that where it is an offence to take a girl out of her parents' possession against their will ; if they have encouraged her in a lax course of life, the encouragement will be deemed to be a consent sufficient to bar a prosecution. Thus in R. v. Primelt^ the Chief Justice in summing up to the jury said, "that if the mother had by her conduct countenanced the daughter iu a lax course of life, by permitting her to go out alone at night and to dance at public nouses, this was nofe a case that came within the intent of the statute; but was one where what had occurred, though unknown to her, could not be said to have happened against her will." The acquittal in Reg v. Frazer 31 also proceeded on the same principle, Pollock, C. B., observing, that " a father is bound to take reasonable care of his child, and this man's conduct in regard to the management of his daughter causes a doubt as to whether she really was taken away against the will of the father." These cases are, however, not so much of real implied consent, as of a presumption of consent, which like all other presumptions of fact may be rebutted. 80. The application of this doctrine is recognized to its fullest extent in the law of contracts. Thus a Recognition of the consent given to a Railwav Company to implied consent to con- jts uge of a certa j n l anc l f or a ri g ht of sequences m law of , , , . , . ? ., contracts. vva Y was ne '" to caiT y consent with it to the company draining and overflowing the land in the proper use of that right, 18 though not to its being negligent in the construction or maintenance of the 30 1 F. & F., 51. I 3a Kemp. v. Railroad Co., 156 Pa. St. 31 8 Cox. C. C., 446. 430. 164 IMPLIED CONSENT TO CONSEQUENCES IN TORTS. [S. 81. way. 33 In North and West Branch Ry. Co. v. Swank f* it was held that an agreement between a landowner and a Railroad Company to sell the latter a right of way across the premises of the former would cover all damages of whatever sort, suffered by the landowner, all for which he was legally entitled to com- pensation. The same principle was recognized in Roffeditz v. Southern Penn. R. w, S. V* R. Co. the agreement for the release by the plaintiff in favor of the Ry. Co. of a right of way expressly released the Company from all claims for damages by reason of the taking and using of the land for the railroad, or by reason of the construction and main- tenance of the said railroad on and over the said land. The plaintiff claimed damages on the ground that some of his land was repeatedly overflowed and rendered unfit for cultiva- tion, by reason of the construction of a ditch and culvert by the Railroad Company, which, he alleged, threw upon his land water which would otherwise not have flowed there. The trial judge instructed the jury, that " these ditches and culverts, and this discharge of water is the result, the necessary result, of the construction of that road." This instruction was upheld, with the remark that "a release of the right of way to a railroad company would be a vain thing if the company is to be subse- quently subjected to litigation for every injury or damage resulting to the property by reason of the construction of the road," and that ''all these matters are supposed to be in the contemplation of the parties when the company pays its money for the right of way and obtains a release therefor." 8l. Nor is it in the law of contracts only that the implied consent to the consequences is recognized. Recognition of the It j s r ecognized equally in the law of implied consent to conse- Ti , , J i i ij quences in law of torts. torts - Jt has thus ln some cases been held that a voluntary spectator, who is present merely for the purpose of witnessing a display, must be held to consent to it, and suffers no legal wrong if accidentally injured without negligence on the part of any one, 37 even if the show be unauthorized, as he takes the risk; 38 but such consent would, of course, not be presumed in the case of a person going on the highway. The contrary has sometimes been held even in regard to spectators, 39 but the non-liability 33 McMinn r Pittsburgh V. & C. Ey. Co., 147 Pa. St., 5. 3 * 105 Pa. St., 555. 33 129 Pa. St., 264. so 132 Pa. St.. 540. 37 Waixel r. Harrison, 37 111. App., 323. 38 Scanlon r. Wedger, 156 Mass., 462. 30 Dowell u. Guthrie, 99 Mo., 653. Bradley v. Andrews, 51 Vt., 530- S. 81.] IMPLIED CONSENT TO CONSEQUENCES IN TORTS. in their case is based on the general principle of taking a dan- gerous risk. Sir Frederick Pollock on the same principle, in his work on Torts, says : "If I go and watch a firework-maker for my own amusement, and the shop is blown up, it seems I shall have no ouse of action, even if he was handling his materials unskilfully." The decision in llott v. Wilkes* 1 proceeded on a similar principle. It was held in that case, that a trespasser having knowledge that there were spring-guns in a wood, although he was ignorant of the particular spots where they were placed, could not maintain jn action for an injury received in consequence of his accidentally treading on the latent wire communicating with the gun, and thereby letting it off. The c;ise is no longer an authority, as setting spring- guns, except by night in a dwelling-house for the pro- tection thereof, has been made a criminal offence ; but as point- ed out by Sir Frederick Pollock, " it has not been doubted in subsequent authorities that on the law as it stood, and the facts as they came before the court, it was well decided." The principle of the decision was explained most clearly by Bayley, J., who said : '* It is sufficient for a party generally to say, there are spring-guns in this wood ; and if another then takes upon himself to go into the wood, knowing that he is in the hazard of meeting with the injury which the guns are calcu- lated to produce, it seems to me that he does it at his own peril, and must take the consequences of his own act. The maxim of law, volenti non Jit in}uria, applies ; for he volun- tarily exposes himself to the mischief which has happened. . . . The case of a man keeping on his own premises a furious dog, or bull, is to a certain degree analogous to this. Suppose such a person were to give a notice that in his premises there is a furious bull, and that it is dangerous for any person to enter, and a wrong-doer, who had read this notice, enters, and the bull attacks him, it is clear that he could maintain no action for the consequences of his own act. So. also, if a trespasser enters into the yard of another, over the entrance to which notice is given, that there is a furious dog loose, and that it is dangerous for any person to enter in without one of the servants or the owner. If the wrong-doer, having read that notice, and knowing, therefore, that he is likely to be injured, in the ab- sence of the owner enters the yard, and is worried by the dog, (which in such a case would be a mere engine without dis- * P. 149. | 3. B. & Aid., 304. 166 DOCTRINE OF OBVIOUS E1SKS IN ENGLAND. [S. 82. cretion,) it is clear that the party could not maintain any action for the injury sustained by the dog, because the answer would be, as in this case, that he could not have a remedy for an injury which he had voluntarily incurred." So also Holroyd J., said : " If the'placing of the spring-guns be not of itself an unlawful act, and only becomes so in respect of the conse- quences which result from it, the party who so enters, with full knowledge of the d.inger, is himself the cause of the mis- chief that ensues, and falls within the principle of law, volenti non jit injuria ; for as he knew that the spring-guns were placed there, he can have no right of action for an injury which resulted from his own act alone." 82. The doctrine of obvious risks by a servant or workman is also based on the same principle of Doctrme o o vious i m pii e( j consent to the consequences, risks in England. T , , , It would be unjust in any case, that one who freely and voluntarily assumed a known risk for which another was, in a general sense, culpably responsible, should hold that other responsible in damages for the consequences of his own exposure. Thus in Woodley v. Metropolitan Dis- trict Ry. Co., 4 ' 1 Cockburn, C. J., in the Court of Appeal said : ''That which would be negligence in a company, with reference to the state of their premises or the manner of conducting their business, so as to give a right to compensation for an injury resulting therefrom to a stranger lawfully resorting to their premises in ignorance of the existence of the danger, will give no such right to one, who being aware of the danger, voluntarily encounters it, and fails to take the extra care necessary for avoiding it." So also in Thomas v. Quarter- maine" Bowen, L. J., citing the maxim volenti non fit injuria said : '' The duty of an occupier of premises which have an element of danger upon them reaches its vanishing point in the case of those who are cognisant of the full extent of the danger, and voluntarily run the risk." The correctness of the general proposition is admitted on all sides, the difference of opinion being only as to its appli- cation, as to whether there is an actual incurring the risk in any case, and if so, whether the incurring is voluntary. In regard to the fact of incurring also, it appears to be agreed upon that it is not equivalent to, but involves something more than knowledge ; and that mere know- ledge by a person of the real state of things may not be a *2 2 Ex. D., 3fc4. | 18 Q. B. D., 685. s . 82.] DOCTRINE OF OBVIOUS RISKS IN ENGLAND. ]gj conclusive defence in an action by that person for an injury caused to him in that state. As referred to in S. 19, it has been repeatedly held that the maxim is not scienti non fit injuria, but volenti. There was no difference of opinion in regard to this point among the Judges in Thomas v. Quarter- maine. Lord Esher, M. R., considered that there was nothing beyond knowledge in the circumstances of the case to excuse the defendant from the effect of his negligence. Bo wen, L. J.. also observed that it was " no doubt true that the knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier must be a knowledge under such circumstances as leads necessarily to the conclusion that the whole risk was voluntarily incurred. There may be a perception of the existence of the danger without compre- hension of the risk : as where the Avorkman is of imperfect intelligence, or, though he knows the danger, remains imper- fectly informed as to its nature and extent. There may again be concurrent facts which justify the inquiry whether the risk though known was really encountered voluntarily." He added, however, that " where the danger is one incident to a perfectly lawful use of his own premises, neither contrary to statute nor common law, where the danger is visible and the risk appre- ciated, and where the injured person, knowing and appreciating both risk and danger, voluntarily encounters them, there is, in the absence of further acts of omission or commission, no evidence of negligence on the part of the occupier at all. Knowledge is not a conclusive defence in itself. But when it is a knowledge under circumstances that leave no inference open but one, viz., that the risk has been voluntarily encoun- tered, the defence seems to me complete. . . Knowledge is not conclusive where it is consistent with the facts that, from its imperfect character or otherwise, the entire risk, though in one sense known, was not voluntarily encountered ; but here, on the plain facts of the case, knowledge on the plaintiff's part can mean only one thing. For many months the plaintiff, a man of full intelligence, had seen this vat known all about it appreciated its danger elected to continue working near it. It seems to me that legal language has no meaning unless it were held thai know- ledge such as this amounts to a voluntary encountering of the risk." Fry, L. J., also took the same view, and speaking of the willingness of the plaintiff to assume the danger, said : " This willingness, if assumed with full knowledge, may lessen or remove any duty of the employer to the employed, DOCTRINE OF OBVIOUS BISKS IN EXOLAXD. _3. 82. and may thus prevent the arising of any cause of action, though in the discharge of the work undertaken the workman Q may have been guilty of no negligence The duty which a master owes to one servant may be quite different to that which he owes to another : it rmy vary with the knowledge, the experience, the skill, and the powers of the workman. In the present case I think that the master owed no duty in respect of the vat in question towards a workman who voluntarily continued to work on the property with a full knowledge of the defect and of the danger thence resulting." In Yarmouth v. France** Lopes, L. J., took the same view, saying: "His constant complaints may be regarded as evidence of his thorough appreciation of the risk he was incurring and of his williugnaas to incur that risk rather than relinquish his employment. After compl mining he remains in the ssrvic?, for a long time, knowing the risk and knowing that no steps had bsen taken to prevent its continuance. This is morj C3asistent with his acquiescence in a disregard of his complaints, and with a willingness to incur the risk, than with the contrary view." It was the contrary view, however, that prevailed, as Esher, M. R., and Lindley, L. J., concurred in it. The latter said : " If in any case it can be shewn as a fact that a workman agreed to incur a particular danger, or voluntarily exposed himself to it, and was thereby injured, he cannot hold his master liable. But, in the cases mentioned in the Act, a work- man who never in fact engaged to incur a particular danger, but who finds himself exposed to it and complains of it, cannot in my opinion beheld as a matter of law to have impliedly agreed to incur that danger, or to have voluntarily incurred it because he does not refuse to face it : nor can it in my opinion be held that there is no cise to submit to a jury on tlae question whether he has agreed to incur it or has volun- tarily incurred it <>i- not, simply because, though he protested, he went on as before. "(0) (C) la Membery v. G. W. R>j. On., v ~' Lords ILJsbury and Bramwell held that the plaintiff had assumed the risk, the former ob3erving that the man obviously encountered a known risk which he had encountered for a period of seven years, and therefore he was not entitled to recover, upon the ground that he was voluntarily incurring the risk he knew that the risk existed ; aud further, he w.is himself doing the very thing which caus- ed danger and ultimataly injury to himself. The decision did not proceed, however, on that ground. ** 19 Q. B. D., 647. * 5 14 App. Cas., 168. S. 83.] DOCTRINE OF OBVIOUS RISKS IN THE UNITED STATES. All these cases were under the Employers' Liability Act ? 1880, and it was argued in them that the application of the rule of the voluntary assumption of obvious risks was excluded by that Act. The argument did not prevail however, and it was held in all of them that the defence based on the maxim volenti -non jit injuria was not affected by that Act. Thus in the case of Thomas v. Quartermaine, Fry, L. J., expressed it as his opinion *' that the statute was intended to place the workman in the same position as a stranger lawfully on the property by the invitation of the occupier, but in no higher or better position ; that the maxim volenti non fit injuria would apply under apposite circum- stances to such a person ; and that consequently it applies under the like circumstances to a servant suing under the statute." 83. The sama doctrine is recognized in the United States also. As a general rule, it is considered Doctrine of obvious t ^ ere tnat a servant ^ho knows that his risks in the United , , tates< employment is dangerous in any given particular, whether proceeding from defective machinery, defective methods of work, insufficient help, the negligence of fellow-servants, or any other cause, accepts the risk of being hurt by reason of such cause or danger, and if hurt cannot recover damages, whether the danger was a natural incident of the employment, or arose from the negligence of the master. It is not even considered material how the servant acquired his knowledge, the rule being held to be that where the servant knows the default of his master in providing defective or unsuitable or dangerous machinery or appliances, but nevertheless volun- tarily enters upon the employment, or after acquiring such knowledge continues therein, the maxim, volenti non jit injuria applies, and there can be no recovery of damages from the master for any hurt to the servant arising from such default. 46 The rule has been held to apply often in cases of an unguarded well, scuttle-hole, or shaft, descending from the floor of a manufacturing or business establishment, O of overhead railway bridges, and unblocked rails, as well as in those of laborers employed in and about an excavation * 8 Trainor r. Philadelphia R. Co.. Coal Creek Mining Co. r. Davis, 137 Past., 148. 90 Temu, 711. Baltimore R. Co. c. Sticker, 51 Hogele r. Wilson, 31 Pao. R., 469. Md. , 47. La Pierre v. Chicago R. Co.. 99 Mioh., 212. 22 170 DOCTRINE OF OBVIOUS RISKS IN THE UNITED STATES. [S. 83. in earth, sand or gravel; and chiefly in case of exposed machinery. Thus in Fitzgerald v. Connecticut River P. C0., 47 the Court said : " It is well settled that a servant assumes the obvious risks of the service into winch he enters, even if the business be ever so dangerous, and if it might easily be conducted more safely by the employer. This is implied in his voluntary undertaking, and it comes within a principle which has a much broader general application, and which is expressed in the maxim, volenti non jit injuria. The reason on which it is founded is, that whatever may be the master's general duty to conduct his business safely in reference to persons who may be affected by it, he owes no legal duty in that respect to one who contracts to work in the business as it is The rule of law, briefly stated, is this: one who knows of a danger from the negligence of another, and understands and appreciates the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure." As to the nature of the assumption of risks, the court observed: "One does not voluntarily assume a risk who merely knows that there is some danger, without appreciat- ing the danger. On the other hand, he does not necessarily fail to appreciate the risk because he hopes and expects to encounter it without injury. If he comprehends the nature and the degree of the danger, and voluntarily takes his chance, he must abide the consequences, whether he is fortunate or unfortunate in the result of his venture." The doctrine of obvious risks was well explained in Sullivan v. India Mfg. Co., 48 in which the court said: "Though it is a part of the implied contract between master and servant (where there is only an implied contract) that the master shall provide suitable instruments for the servant with which to do his work, and a suitable place where, when exercising due care himself, he may perform it with safety, or subject only to such hazards as are necessarily incident to the business, yet it is in the power of the servant to dispense with this obligation. When he assents, therefore, to occupy the place prepared for him, and incur the dangers to which he will he exposed thereby, having sufficient intelligence and knowledge to enable him to comprehend them, it is not a question whether such place might, with reasonable care and by a reasonable expense, have been made safe. His *? 155 Mass., J55. | *s 113 Maas., 396. S. 83.] DOCTRINE OF OBVIOUS RISKS IN THE UNITED STATES. assent has dispensed with the performance, on the part of the master, of the duty to make it so. Having consented to serve in the way and manner in which the business was being conducted, he has no proper ground of complaint, even if reasonable precautions have been neglected." So also in Leary v. Boston R. R. Co., 49 Devens, J., said : "The servant assumes the dangers of the employment to which he voluntarily and intel- ligently consents, and while ordinarily he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neglected, and still knowingly consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master to take such precautions." In O'Maley v. South Boston Gaslight Co., 50 the Court said : " The doctrine of assumption of the risk of his employ- merit by an employee has usually been considered from the point of view of a contract, express or implied ; but as applied to actions of tort for negligence against an employer, it leads up to the broader principle expressed by the maxim, volenti non fit injuria. One who, knowing and appreciating a danger voluntarily assumes the risk of it, has no just cause of complaint against another who is primarily responsible for the existence ot the danger. As between the two, his voluntary assumption of the risk absolves the other frcm any particular duty to him in that respect, and leaves (ach to take such chances as exist in the situation, without a right to claim any- thing from the other." The duty violated in this case was a statutory one. The Court in overruling the contention that the doctrine of obvious risks would not apply to such a duty said: "It would be an unwarranted construction of the statute, which would tend to defeat its object, to hold that laborers are no longer permitted to contract to take the risk of working w here there are peculiar dangers from the arrange- ment of the place and from the kind or quality of the machinery used. We have no doubt that one may expressly contract to take the obvious risks of danger from inferior or defective machinery, as well since the enactment of this statute as before." The same has been held still more recently by the Supreme Court of Massachusetts in Goodridge v. Washington Mills Co., 1 and by the New York Court of Appeal in Knisley * 139 Mass., 580. | 50 158 Mass., 135. | * 160 Mass., 234. 172 VOLUNTARINESS OF THE ASSUMPTION OF RISKS. [g. 84. v. Pratt. 2 To sustain a right of action by the employee in such cases, it is necessary to hold that where the statute imposes a duty upon the employer the performance of which will afford greater protection to the employee, it is not possible for the latter to waive the protection of the statute under the common law doctrine of obvious risks. The New York Court, however, regarded "this as a new and startling doctrine, calculated to establish a measure of liability unknown to the common law, and which is contrary to the decision of Massa- chusetts and England under similar statutes." It was contended in this last case, " that the Factory Act is passed to regulate the employment of women and children, and imposes upon the employer certain duties, and subjects him to specified penalties in case of default ; that a sound public policy requires the rigid enforcement of this Act, and it would contravene that o * policy to permit an employee, by implied contract or promise, to waive the protection of the statute." This contention was overruled, and the court said : " We think this proposition is essentially unsound, and proceeds upon theories that cannot be maintained. It is difficult to perceive any difference in the quality and character of a cause of action, whether it has its origin in the ancient principles of the common law, in the formulated rules of modern decisions, or in the declared will of the legislature. Public policy in each case requires its rigid enforcement, and it was never urged in the common law action for negligence that the rule requiring the employee to assume the obvious risks of the business was in contravention of that policy." 84. The main question in these cases of the assumption of risks is, as already observed, whether the Exact character of assumption is in any particular case volun- the voluntarmess or the , i* i i assumption of risks. tal 7> Because a consent of the workman or labourer to the injury resulting -to him will be implied only if the assumption is such. The word voluntary, as generally used, implies merely the absence of coercion. Thus voluntary appearance in judicial proceedings before a foreign tribunal operates in some cases as a waiver of the jurisdiction of that tribunal over those proceedings ; and a person is said to appear voluntarily if he does so without duress of person or goods. 3 An acknowledgment is generally a 148 N. Y., 372. | 3 Voinet r. Barrett, 55 L. J. Q. B., 39. S. 84.] VOLUNTABINESS OF THE ASSUMPTION OF RISKS. tf 3 said to be voluntary, when it is made without coercion. 4 In particular cases and particular classes of cases the word has a somewhat narrower or broader signification. Thus in regard even to acknowledgment, a voluntary acknowledgment has been held not to be equivalent to that made by a married woman " of her own free will and accord, without fear, constraint or persuasion of her husband." 5 The question as to when a pay- ment is voluntary has been already discussed in S. 61. In cases of accident insurance, a voluntary exposure to obvious risks of injury implies conscious intentional exposure, some- thing which one is willing to take the risk of. 6 *' It is not such exposure as men usually are going to take ; -such as is incident to the ordinary habits and customs of life ;" but "something beyond the ordinary, or a wanton, apiece of gross carelessness, as we would term such in our designa- tion of a person's conduct in the usual walks of life." 7 In cases of the assumption of obvious risks by a servant or workman, a very restricted construction has been put on the word voluntarily, and almost any reasonable fear is held to exclude voluntariness. In Woodley v. Metropolitan D. E. (7o., 8 Cockburn, C. J., in his judgment, indeed, said: " With a full knowledge of the danger, he (Woodley) continued in the employment, and had been working in the tunnel for a fortnight when the accident happened. ..... If he becomes aware of the danger which has been concealed from him, and which he had not the means of becoming acquainted with before he entered on the employment, or of the want of the necessary means to prevent mischief, his proper course is to quit the em- ployment. If he continues in it, lie is in the same position as though he hud accepted it vvitli a full knowledge of its danger in the first instance, and must be taken to waive his right to call upon the employer to do what is necessary for his protection, or in the alternative to quit the service. If he continues to take the benefit of the employment, he must take it subject to its disadvantages. If a man chooses to accept the employment, or to continue in it with a knowledge of the danger, he must abide the consequences, so far as any claim to compensation against the employer is concerned. Morally * Brown v. Farran, 3 Ohio, 153. 7 Manufacturers' Accident Indemnity 5 Sootfc v. Simons, 70 Ala., 357. I Co. . Dorgan, 58 Fed. Rep, 945. a Keene v. New England, Mut. Ace. | s 2 Ex. D., 388. Ass., 161 Mass., 149. 1 74 VOLUNTARINESS OF THE ASSUMPTION OF RISKS. [8. 84. speaking, those who employ men on dangerous work without doing all in their power to obviate the danger are highly reprehensible, as I certainly think the company were in the present instance. The workman who depends on his employ- ment for the bread of himself and his family is thus tempted to incur risks to which, as a matter of humanity, he ought not to be exposed. But looking at the matter in a legal point of view, if a man, for the sake of the employment, takes it or continues in it with a knowledge of its risks, he must trust to himself to keep clear of injury." A stricter view appears to have been taken in subsequent cases. Thus in Yarmouth v. France, 9 Lindley, L. J., said : " If no- thing more is proved than that the workman saw danger, reported it, but, on being told to go on, went on as before in order to avoid dismissal, a jury may in my opinion properly find that he had not agreed to take the risk and had not acted voluntarily in the sense of having taken the risk upon himself. Fear of dismissal, rather than voluntary action, might properly be inferred. A fortiori might the jury properly come to such a conclusion if it was proved that the workman was told by his superintendent not to mind, and that if any accident hap- pened the employer must make it good. Such an additional circumstance would go far to negative the inference that the complaining workman took the risk upon himself." In Thrussell v. Handyside Hawkins, J., also said : " It is diffi- cult to say, where a man is lawfully working, subject to the orders of his employers, and to the risk of dismissal if he dis- obeys, that if, after asking for and failing to obtain protection from the danger caused by other people's work, he suffers injury, the maxim Volenti non fa injuria applies. It is true that he knows of the danger, but he does not wilfully incur it. Scienti, as was pointed out in Thomas v. Quarter- maine and in Yarmouth v. France, is not, equivalent to Volenti. It cannot be said, where a man is lawfully en- gaged in work, and is in danger of dismissal if he leaves his work, that he wilfully incurs any risk which he may encounter in the course of such work, and here the plaintiff had asked the defendants' men to take care. It is different where there is no duty to be performed, and a man takes his chance of the danger, for there he voluntarily encounters the risk. If the plaintiff could have gone away from the dangerous place 19 Q. B. D., 661. | 10 20 Q. B. D., 359. S. 84.] VOLUNTAR1NESS OF THE ASSUMPTION OF KISKS. without incurring the risk of losing his means of livelihood, the case might have been different; but he was obliged to be there; his poverty, not his will, consented to incur the danger." In Membery v. Great Western Ey. Co., Lord Bramwell proposed to base his decision on a very liberal constiuction of the word " voluntarily ji ; on the view that voluntarinesscan be excluded only by physical constraint, and that where a person can take his option to do a thing or not, to do it and does it, he does it voluntarily. He said, 11 "I hold that where a man is not physically constrained, where he can at his option do a thing or not, and he does it, the maxim applies. What is volens? willing; and a man is willing when he wills to do a thing and does it. No doubt a man, popularly speaking, is said to do a thing unwillingly, with no good will, but if he does it, no matter what his dislike is, he prefers doing it to leaving it alone. He wills to do it. He does not will not to do it. I suppose nolens is the opposite of volens, its negative. There are two men, one refuses to do work, wills not to do it; and does not do it. The other grumbles, but wills to do it, and does it. Are both men nolentes, unwilling ? Suppose an extra shilling induced the man who did the work. Is he nolens, or has the shilling made him volens? There seems to be a strange notion, either that a man who does a thing and grumbles is nolens, is unwilling, has not the will to do it, or that there is something intermediate between nolens and volens, something like a man being without a will, and yet who wills. If the shilling made him volens, why does not the desire to continue employed do so ? If he would have a right to refuse the work and his discharge would be wrongful, with a remedy to him, why does not his preference of certain to an uncertain law not make him vol?ns as much as any other motive ? The master says, here is the work, do it or let it alone. If you do it, I pay you ; if not, 1 do not. If he has engaged him, he says, I discharge you if you do not do it; I think Iain right; if wrong, I am liable to an action. The master says this, 'the servant does the work and earns his wages, and is paid, but is hurt." The other lords did not, however, concur in that view, Lord Herschell expressly declining to express any opinion on the point, and the case being decided on other grounds. " 14 Ap, Cas,, 187. 176 CONSENT IMPLIED TO ALL NECESSARY TO ACT. [SS. 85,86. 85. Mr. Mayne observes that "the mere fact of an adult, placing himself under treatment in a Consent to an act im- surgical case would carry with it an im- plies consent to every- p U e d readiness to submit to everything thing necessary to do ', c ,, 12 .' . that act. t " at was necessary for a cure. It is on this very principle that an agent, having authority to do an act, has authority to do every thing lawful which is necessary in order to do that act. 13 Authorizing a person to do an act is, so far as this question is concerned, consenting to his doing that act; and it is a general principle, even if the authority ba impliedly conferred, that it must involve an authority and consent to do everything necessary to effect the purpose for which the agency was created. On the same principle, it is sometimes maintained that, a consent to an act or event implies a consent to what is done to bring on that act or event. Ortmann even oes so far as to broadly maintain that wer die Wirkung will, muss auch die Ursaohe wollen. (x) 14 This is no doubt condemned by Kessler, who says : man kann den Erfolg wollen in dem Sinne, in welchem dies irgend von dem Erfolge einer fremden Handlung gesayt werden kann, ohne in dessen Herbeifilhrung einzuwilligen. So mancher von Zahnweh Geplagte will den kranken Zahn gerne los sein ; damit hat er nodi liingst nicht in das Ausziehen einye- willigJit.^ 1 ^ No jurist, however, has maintained that by con- senting to a consequence we do not consent to its cause, when that is the only and inevitable cause of that consequence. It will be almost absurd to say that a consent to certain papers being burnt, does not imply a consent to the application of a lighted match to them ; or that a consent to a person shooting- does not imply a consent to his pulling the trigger with intent to shoot. 86 Consent of a person to an act shall not necessarily be implied merely from his not taking steps Consent not implied t o prevent the doing of it. Remaining from non-prevention. r . ,., . passive intentionally to an act likely to (x) Who -wills the effect must also will the cause. (;/) We caa will the consequences, in the sense in which this can in any way be said of the ooasaquences of another person's act, without consenting to the bringing about of that act. Thus many a person troubled with toothache, wills to be rid of the diseased tooth ; he has therewith, however, by fa.r not consented to the drawing out of it. 18 Mayne Cr. L. 400. I 1* Goltd. A. XXV, 118. 13 S. 188, Act IX of 1872. " Keee. Einw., 35. S- 85 ] CONSENT NOT IMPLIED FROM NON-PREVENTION. take j>lace, after knowledge of that likelihood, and thus nllowiog it to proceed, with a view to the discovery of the offender or of the evidence of the offence does not import a consent lo that act. Any presumption of consent that the passivity might warrant would he rebutted by the object with which the passivity was adopted ; and it would indeed be strange to infer consent to an act from conduct directed exclusively to the punishment of that act. It will be the same, even if the information of the intended eom'rnission of the offence is communicated by one of the real confederates of the person who commits the offence. This generally takes place in cases of contemplated burglary, when the owner of the house in which the burglary is proposed to be committed, on receiving information, only takes steps to secure the offenders in the very commission of the offence. And it has been repeatedly held that if a person knows that a burglary is to be committed in his house, and merely takes no steps to prevent it, but lies in wait to catch the burgla-. he is not to be deemed to consent to the entry. 16 Thus in Thompson v. State, 11 it was held that the fact that the owner upon being advised of the intended burglary made no effort to prevent it, but provided a force to secure the arrest of the burglars, did not involve a consent to the entrance, and would not affect their criminality. In this case, stress was laid on the circumstance that the owner had not made any agreement with the confederate giving the information by which he was to bring the burglars to his house. The rule will be the same, even if there is such an agreement. Where a man to whom the persons who had planned the burglary of a store communicated their plan, informed the police, and was advised to continue in the plot and keep the police informed, and the police with the consent of the owner of the property secreted themselves in the store on the night when the burglary was to take place and captured them; it was held that no 'inducements were offered to them to commit it, nor were they encouraged to commit the same, and the mere con- sent of the owner of the property, to the police occupying the store in order to arrest them did not constitute a consent to the entry. 18 ' ; State r. Covington, 2 Bailey, 569. 1 17 18 Ind., 386. State r. Sueil, 22 Neb., 4*1. 1S People r. Morton, 4 Utah., 407. 23 178 \- NT NOT IMPLIED FY PROVIDING FACILITIES. >. 87. In The Empress v. Troylukko Nath, 19 the accused asked tlie proprietor's godo \\n-keeper to take out more goods than had actuallv been sold through the firm with which the accused v A\ as connected, telling him that the profits would be divided between them ; and the godown-keeper having obtained the owner's permission assented, and the accused was arrested taking out the excess goods by the police, who had been com- municated with, and the High Court upheld his conviction for abetment of theft under section f^|, Jackson, J., in his judgment observing, that ** the circumstance that owing to the property being removed with the knowledge of the owner, the technical offence of theft had not been commit- ted does not save the prisoner from the consequence of the abetment." There appears to have been no argument on behalf of the accused before the High Court, and the ques- tion as to whether consent could be implied from kiu was apparently not discussed, and the observation in regard to there being no theft was a mere dictum ; and in the face of the general consensus of opinion, such a knowledge alone could not, in the circumstances be held to import consent, and mere knowledge of the owner is quite immaterial for theft. In Germany the high authority of Binding is against this view, and he considers that there is in such cases an expro.- consent to the taking away ol the thing though not to its appropriation, and therefore there will be no theft but only unttrschlagung (embezzlement). 20 The weight of opinion appears, however, to be against him ; and Olshausen, in his Commentary on the German Penal Code,- 1 observing that a mere banding over of a thing is not to be deemed a consent V to its removal by the receiver thereof, adds : tbensowemg ist jede NichtverhinderuHg Her fVegnahme mif Zustimmung ufeflfittA, ( 8 ) and gives the following illustration in support of the rule, Der Kinifer finer (^uanfifat Sjtreu sue/if e den mit der Zumessuag beauftragten Jr/W^r ;u veranlttssen, i/nn sfatf d'.^tit Raps zuzumessen ; /^c^/vr //^/ i>n Einverstfindn Herrn ^trtif Jaraufein. c/ 1 < < ^tsc/iehen //V^, d-.iss der Still less can the uou-prevention of taking away be identical with con- I. L. R., IV. Cal., 3iH5. | * II Bind. Norm.. 1 * P. 880. S. 87.] CONSENT NOT IMPLIED BY PROVIDING FACILITIES. 179 Kaufer selbgf d8 Bapses sif-h bemachtigte ; e-s erfolgte Verurthei- lung des K'dufers wtgen DielxtaJd (a) . There appears to be a difference on the point among Italian jurists. Paolo says, potere agire di furto anche colui che essendo preaente al furto die si commeteva a suo danno l>r<>]i/l>cre potuit et nan prohzbuit. Francesco Carrara admits i-le Vannuenza tacit n e preaunta del proprietario fa cesmre il /"/(". />erc/tv wpponiamo la ipotexi che cM prendeva la r&ba are**e ragione di credere die il proprietario consentisse.^ (h} He added, however, that this did not destroy the general rule which recognized theft even in aUazione (removal) commit- ted in the presence of the proprietor. 87. The rule goes much beyond mere passivity. No con- sent will be implied, even if a person Consent to an act not learning that a crime is to be committed Slides tor itT'ca'teh *% mi him > instead , f {V 1% to prevent the doer it, lays traps to catch the offender. These traps are usually laid by providing facilities for the commission of the crime. As observed by Dr. Wharton, the circumstance of the owner laying a trap, such as putting out lights or lessening the difficulties of entrance, does not preclude a prosecution for burglary. 23 If one simply leave marked property in such a position that if stolen, it can be identified ; or if, while keeping his door fastened, he put out the lights and collects a party of armed friends, to seize the expected burglar ; the existence of such traps forms no defence. The fact that facilities for committing an offence are afforded, or even that temptations to its commission are put in the way of the offender by one who is seeking to entrap him, will not affect the question of his guilt, or relieve him from iegal responsibility for the crime. (a) The purchaser of a quantity of husks sought to persuade the labourer entrusted with the measuring out of it to give him rapeseed instead. The latter, in understanding with his master, allowed this to take place, so that the purchaser poesese) The Italian jurist, however, does not concur in that view, and says : 33 E vero die nel momento del furto il proprietario volera che uno dei ladri rubasse. Ma lo voleva per potere denunziare ValtrOtfarlo punire e ricuperare le cos sue : dunque Tanimo di abbandonare il possesso in lui non vi fit, e si scambia la volontti di portare il ladro alia pena, col consenso alia distrazione del po**esso e del dominio. Xon mancavano dun/t in ipso facto fur em deprebendat, Ugnale problema potrebbe pro. i in tenia di adulterio e crederei con identica toluzione. (l) (A) The decision in Allen v. State S3 is not against this view, as in that case not only was the key, with which the look was opened, furnished by the master to the servant directly for the purpose of furthering the scheme for the robbery from the locked room, but the servant had turned the bolt ; and the acquittal proceeded on the ground that there was no breaking actual or constructive. (b) The thief took possession of the things, while the proprietor wished that ho should do so. (c) It is true that at the moment of the theft, the proprietor wished that one of the thieves should steal. He wished this, however, in order to be able to denounce the other, to have him punished, and to recover his own things. The intention of giving possession was therefore not present, and the will to bring the thief to punishment is mistaken for consent to the transfer of possession and ownership. There were not wanting therefore the objective essentials of theft, and there were not wanting likewise the 40 Ala., 334. 43 Tex ,108. Carr. Prog., S. 2034 (n). 30 Syntagma Juris Givilts exercitat: 48. lib. 47, tit. 2, 8. 15, p. 759. S. 88.] CREATING OPPORTUNITY DOES NOT IMPLY CONSENT. 88. Even creating an opportunity for the commission of an act is not an implied consent to that act. Creating opportunity Thus Dr \Vl iarton says . ^y hen to the tor an act does not ... . > a ' > ., - imply consent to it. constitution ot an offence it is necessary that it should be committed without the consent of the party assailed, it is no defence that opportunities for the consummation of the offence, were offered by Govern- ment or by prosecution. Exposing of marked goods, by their owner, to a supposed thief, has been repeatedly held not to bar a prosecution for larceny." It has thus been held, that it is no defence to an indictment for soliciting a servant to rob his master, that the servant sought out the defendant with the express purpose of receiving a solicitation, that the defendant might be convicted. 37 So also, where a person, having heard of the practice of a highway man to rob a certain stage accompanied it in a post-chaise for the purpose of apprehending him, and when he came up, and presented a weapon and demanded money, gave him some ; and then with a weapon which he carried for that purpose, and with the assistance of the passengers of the stage, captured the robber, and it was held that the offence of robbery was com-- mitted. 33 The same has been held repeatedly in the United States. It has thus been held there, that merely furnishing opportu- nities to commit larceny, for the purpose of entrapping the one who proves guilty will not prevent his conviction. 39 If a man is suspected of an intent to steal, and another, to try him, leaves his property in his way, which he takes, he is guilty of larceny. But it would not be so, if the master had directed the servant to deliver the property to the thief, instead of furnishing facilities for his arriving at the place where it was kept. 40 In People v. llanselman, 41 a police officer for the purpose of discovering the person who had been committing some crimes, feigned drunkenness and pretended to fall in an subjective essentials, as the thief did not know that the owner tolerated the theft only in order to denounce him. The doubt is moreover solved in the terms of 1. 20 Chapter on Theft, on the ground of which Struvio to the rule of the consent of the owner adds the limitation, " unless the owner allowed the removal to take place, so that he might seize the thief." A similar question can be raised on the subject of adultery, and I believe with a similar solution. a? I Whart. Cr. L., 104. I so Norden's Case, Post.. 129. ss Keg. t-. Quail, 4 F. & F., 1076. *o Varner v. State, 72 Ga., 745. 41 Dodge r. Brittain, Meige, 84. 134 CREATING OPPORTUNITY DOES NOT IMPLY CONSENT. [S- 88- alley in a drunken stupor, and while so lying in a perfectly conscious condition, a person whom he had not suspected came up to liim and took some money out of his pocket, he making no resistance, it was held that there was no such consent as to prevent the taking being larceny. The Court said : " We do not think there is such consent, where there is mere passive submission on the part of the owner of the goods taken, and no indication that he wishes them taken, and no active measures of inducement employed for the purpose of leading into temptation." 43 It is on the same principle, that sending decoy letters is held not to imply a consent to their being taken by the person to whom they are addressed, and who takes them. It has been repeatedly held, that the circumstance of the letter stolen being a decoy letter, is no defence against a charge of larceny. 4 ; Thus, in Reg. v. Gardner, 44 an officer in Postal Department intending to try the honesty of a post-mistress, sent a letter by post, addressed to a fictitious person and a fictitious street, putting two marked coins in the letter, so as to pass her hands. Her taking out the marked money was held to be larceny. And it will be so, even though the letter may, on account of the manner of its posting 46 or otherwise, not constitute a mail letter, and its stealing, therefore, may not be punishable as the larceny of a mail letter. 40 There was a difference among Roman Lawyers on the point. Gaius 4? said, that, " if Titius solicit my slave to steal my property, and convey it to him, and my slave inform me of it, and I, wishing to detect Titius in flagrante delicto t permit my slave to convey in y goods to him," there would be no theft, as I consented to his dealing with my property. This was in accordance with the opinion of the jurists of the Sabinian School. Ulpian's opinion was. however, different, and Justinian finally decided that there was no consent in such cases. And Kessler points out that it will make no difference in the law that the person solicited is a servant and not a slave, adding Tcli iriirde lein Bederiken tragen. iJm al* Dieb zu bestrafen. (f} (?) I would have no scruple to punish him as a thief. * B 7fi Cal.,460. 43 United States r. Foye. 1 Curt. C. C., :;F4. United States r. 'Cottingham. 3 Blatohf., 470. ., * ' 1 Car. & K., 028. 45 Reg. r. Shephard, Dear.- C. C. 606. ir> United Stares r. Mathews, 3o For]. Rep., 890; Connor r. People, 18 t'ulo., 373. + 7 III., S.198. S 89.] ENCOURAGING AN ACT DOES NOT IMPLY CONSENT. 89. Consent will not be implied from encouraging or even co-operating by agents in the doing of a Encouraging or co- cr i m i na l act with a view to the discovery operating in an act to f fa offender SQ j ag th doer is discover the doer, does o not imply consent to it. not induced or urged to the act by the person against whom the act is done, or by his agent. Thus, if the owner, in order to detect a number of men in the act of stealing, directs a servant to appear to encourage the design, and lead them on till the offence is complete, so long as he does not induce the original intent, but only provides for its discovery, after it is formed, the crimin- ality of the thieves will not be affected. 45 In Beg. v. Bannen, * a person was convicted of feloniously making dies, though he got them made by a person, who, before making them, applied to the mint, and received instructions to make them. In Com. v. Hollister, 47 Brown had informed the chief of Police and Spencer, into whose pay office the robbery was to be committed, of the purpose and plan of the alleged confeder- ates, and of the time they had fixed for the consummation of the offence, and was co-operating with the police and the intended victims of the plot for the purpose of detecting those engaged therein; and it was held, that it did not follow that two of the confederates, who, without any suspicion that Brown was acting the part of a. detective and informer, feloniously took and carried away packages of money, were any the less guilty of larceny. 90. Inducing a person to do an act, however, implies a consent to the act. It has been repeat- Inducing a person to edly held, that, if the design of an act an act implies consent to J . . -, -, & . , tne act> is originated by a person against whom the act is to be done or by his agent, and is suggested by him to the person who does the same merely adopting the suggestion, the latter is deemed to do it with the implied consent of the originator. 48 In The King v. Egginton, 49 the Court laid great stress on the circumstance that although Boulton, the owner of the things stolen, "had permitted or suffered the meditated offence to be committed, he had not done any thing originally to induce it; . . . that the design originated with the prisoners ; and that all Boulton did was to prevent their design being carried into + 5 Rex. -o. Whittle gham, Leach C.C. , I * 7 157 Pa., 13. 912 ; Oomm v. Nott., 135 Mass., 269. *"< O'Brien r. Sfcate, 6 Tex. App., 665. * 1 Car. & K.. 295. * B Leach C. C.. 922. 186 INDUCING A PEESON TO AN ACT IMPLIES CONSENT. [S- 90. undetected execution ; which differed the case greatly from what it might have been if he had employed his servant to suggest the perpetration of the offence originally to the prisoners." In People v. McCord t 60 the proprietor of a store, with some other persons and a detective stationed themselves in the store, and another person acting os a detective left a window un- fastened, through which the accused entered, AY hen he was arrested, and indicted for burglary. He was acquitted, how- ever, on the ground that the crime was instigated by a conji.- dante of the proprietor with his acquiescence, and the accused was merely aiding and abetting him. Campbell, J., in delivering the opinion of the court, said : ''He was not the active agent in the crime, but guilty of aiding and abetting Flint, and therefore only guilty if Flint was guilty. It would be absurd to hold Flint guilty of burglary. He did what he was expect- ed to do, and had no such intention as would hold him responsible. It may be true that a person does not lose the character of an injured party by merely waiting and watching for expected developments. . . . , . It would be a disgrace to the law if a person who has taken active measures to persuade another to enter his premises and take his property can treat the taking as a crime, or qualify any of the acts done by invitation as criminal. What is authorized to be done is no wrong in law to the instigator. In this case, Flint was active in the matter, and the circumstances are clear that it was by such authority as would exonerate him and his victim from criminal responsibility." In Johnson v. State, l the court said : " The fact of such conspiracy once being established, the subsequent consent of the owner (or those acting for him) for the conspirators to enter the building will not affect their guilt in the least, unless the evidence shows that Higgins and Garwood, or the detective employed by them, suggested the offence, or in some way creat- ed the original intent or agreement to commit the offence as charged." In Connor \. People,* the scheme to rob the Ex- press Company was instigated by the superiors of H., and suggested by him to the person charged with robbery, and even communicated to the officers of the Company, who consented to it, and it was, therefore, held, that the offence of robbery \vas o 76 Mich., 200. | i 3 Tex.. Ap].., 593. 8 18 Colo., 373. .8 91.] SOLICITING A PEESON TO UO AN ACT IMPLIES CONSENT. not committed. ( A ) It has been repeatedly held that the employ- ment of spies is justifiable only so long as the person thus employed " instigates offences no further than by pretending to concur with the perpetrators.'' " 3 91. To imply consent on the part of a person, it is not neces- sary even, that he should have originated Soliciting a person to the i( j ea of the offence. Mere soliciting do an act implies con- -. .,, . . seDt to j t a person to do an act will imply consent to the doing of the act, even if the idea of doing the act should have originated with the person doing it. Thus in fVilli'ims v. State,* the design originated with the thief himself, who, however, was invited to the place, where cotton was given him with the owner's consent by his agent ; and Bleckley, J., in delivering the opinion of the Supreme Court of Georgia, observed : " Can the owner directly, through his agent, solicit the suspected party to come forward and commit the criminal act, and then complain of it as a crime, especially where the agent, to whom he has entrusted the con- duct of the transaction, puts his own hand into the corpus delic- ti, and assists the accused to perform one or more of the acts necessary to constitute the offence ? Should not the owner and his agent, after making every thing ready and easy, wait passively and let the would-be criminal perpetrate the offence for himself in each and every essential part of it ? It would seem to us that this is the safer law, as well as the sounder morality, and we think it accords with the authorities. It is difficult to see how a man may solicit another to commit a crime upon his property, and when the act to which he was invited has been done, be heard to say that he did not consent to it. In the present case, but for the owner's incitement, through his agent, the accused may have repented of the contemplated wickedness before it had developed into act. It may have stopped at sin, without putting on the body of crime. To stimulate unlawful intentions, with the motive of bringing (E) Goddard, J , in delivering the opinion of the Supreme Court of Colorado, said : ' Wo do not wish to be understood as intimating that the services of a detective cannot bo legitimately empk^ed in the discovery of the perpetrators of a crime that has been or is being, committed, but Ave do say that when in their zeal, or under a mistaken sense of duty, detectives suggest the commission of a crime and instigate others to take partin its commission in order to arrest them while io the act. although the purpose may be to capture old offenders, their conduct is not only reprehensible, but criminal, and ought to be rebuked rather than encouraged by the courts." 3 Reg. r. Mullins. 3 Cor.. C. C. 531 ; * 55 Gu., 391. Queen-Empress r. Mona Puna. I. L. R., XVI Bom., 669. 138 NO QUESTION WHEBE AOT DONE BY INJUEED PERSON. [s. S2. them to punishable maturity, is a dangerous practice. Much better is it to wait and see if they will not expire. Humanity is weak ; even strong men are sometimes unprepared to cope with temptation and resist encouragement to evil." So also, where detectives, who had been working up a case against a person, went into a bank, and then went out and told him that they wanted more help and solicited him to go in to help them, and he followed them in, it was held that he was not guilty of burglary, 5 as the detectives could not be considered in any other light, than as the servants and the agents of the bankers in communication with whom they had been acting. 92. The question of consent cannot arise in cases where the act constituting the offence is done by No question of consent the person injured or by a person who where criminal act is actually is, or should be deemed to be, an done by injured person. agent of hig> NQ other pergon Ofln be m .^ e liable for the acts of the victim or his agent. 6 Any other person can be charged with the act, only as his accomplice, and to constitute a person the accomplice of another in an offence, it is necessary that there should be an in- tentional co-operation in the commission of that offence. There can, of course, be no such co-operation when the intention of the person doing the act is not to commit an offence, but to secure the conviction of another person for the commission of an offence by that act. Jn Slate v. Jansen 7 Brewer, J., observed, that *' the act of a detective may, perhaps, not be imputable to the defendant, as there is a want of community of motive." The law is quite clear, however, against treating as an accomplice a person who participates in [in act done by another, with a motive the very opposite of that other. Thus if one pretending by way of artifice to be an accomplice, but believed by the accused to be a real accomplice, performs at the instance of the owner of the goods, acts amounting to the physical constituents of larceny, the pretended accom- plice represents the owner and not the accused, although the accused may have concurred in the acts and thought he prompted them, and therefore the accused cannot be held guilty on account of them. Speaking of such an accomplice Bleckley, J., in Williams v. State 8 observed that " that person was in mental and moral concert with the owner, not with the 5 Speulen v. State, 3 Tex. Ct. App., 8 S'ate v. Douglas, 41 Kan . 613. 156. 3 55 Ga., 391. 22 Kan., 498. S. 92.J NO QUESTION WHERE ACT DONE BY INJURED PERSON. accused. It is incredible that he was engaged in stealing during this transaction. There was no guilty taking or carry- ing done by him. The defendant is responsible alone for such taking and carrying away as were done by himself. The acts of the counterfeit accomplice proceeded from the joint will of himself and the accused. He, with the owner, was running on the line of detection and arrest. The accused had a supposed ally, but not a real one. The pretended accomplice could do no act, which would render the defendant guilty, for the former was making no effort to become guilty himself." A spy is both in fact and in principle entirely distinct from an accomplice, and while the latter confesses himself a criminal, the former may be an honest man. ( K ) In Reg v. Despard, 10 Lord EHenborough observed, that these persons did not partake of the criminal contamination of accomplices who enter into "com- munication with the conspirators with an original purpose of discovering their secret designs, and disclosing them for the benefit of the public." Excluding the case of an accomplice, it is a general principle, that to convict a person of an offence, it must appear that he himself did all that was necessary to constitute that offence. Thus where no criminal act is done by the person charged, as, for instance, the door is opened and he called to enter by an agent of the owner of the building, or the owner's property is given to him by the agent, 12 though only with a view to secure evidence of his guilt, there will of course be no offence. On the same principle, a conviction for burglary in a court- room was set aside in Saunders v. People, 13 in which a police- man had on the offender's request left open the door of the court- (F) In lleg . v. Mullins, 9 Maule, J., in distinguishing between the two, said : " As to P and D, they were persons who. understanding as they say, that there were dangerous designs entertained by certain Chartist Societies, joined the meetings, and pretended to sympathize with the views of the conspirators, in order that they might communicate their designs to Government. They joined the scheme for the purpose of defeating it, and may be called spies. B, and B, on the other hand, were really Chartists, con- curring fully iu the criminal designs of the rest for a certain time, until getting alarmed, or for some other cause, they turned upon their, former associates, and gave information against them. Ihese persons may be truly called accomplices." And this was quoted with approval in Qusen-~Em]wss v. JavecJutram, 11 in which Jardine, J., in delivering the judg- ment of the Court, said: "M appears from his own account to have been the first instigator of the present offenoe ; not merely a spy, who knowing of criminal doings, or doings which will culminate in a crime, merely pretends to concur with the per- petrators." 3 Cox C. C., 530. 11 I. L. E., XIX Bom., 363. 10 28 State Trials, 489. " People v. Collins, 53 Cal.,185. 13 38 Mich., 218. 190 NO QUESTION WHERE ACT DONE BY INJURED PERSON. [S. 92. room under his superior's sanction, with a view that the offender might take away certain bonds from there. In Sanders v. State^ the prosecutor was informed that certain persons were coming to his smoke-house on a specified night to steal his meat, and he and others concealed themselves near by to watch; the smoke-house door was opened, and the house entered, when' immediately the parties on watch closed in and arrested two of the intruders in the smoke-house. It was claimed that what was done was by the consent of the prosecutor, in pursuance of a plot arranged between him and one Ellison. Jt was held that if the breaking of the house, or the removal of the meat was an act done by Ellison with the consent of tke prosecutor, and the intruders only aided and abetted him, they would not be guilty ; but if the plan or plot was only to detect the crime, and not bring it about, they would be guilty, if in fact they feloniously broke and entered, or with a felonious intent, and without the prosecutor's consent, removed any part of the meat ; that a man might direct a servant to appear to encourage the design of the thieves, and to lead them on till the offence should be complete, so long as he did not induce the original intent, but only provided for its discovery after it was formed ; that if a man was suspected of an intent to steal, and another to try him, left property in his way, which he took, he would be guilty of larceny ; but that would not be the case, if the master had directed the servant to deliver the property to the thief, instead of directing him to furnish facilities for his arriving at the place Avhere it was kept. 15 In State v. [lays, a detective went with the accused to a store in the night-time, having previously informed the police of his intention. The accused raised the window, and the decoy entered and handed out some goods to him, and the Supreme Court of Missouri held that as the accused did not enter the warehouse either actually or constructively, he did not commit the crime of burglary, no matter what his intent was. It will be the same, even if the communication is not made to the master, but a servant in the interests of his master communi- cates to the police the intention to commit the offence, and under the instructions of the police encourages or facilitates the commission of the offence. In R. v. Johnson, 17 JVIaule, J., said, that Cole the groom acting under the directions 11 Vide 30 Am. Hep., 130 (n). I ^ JG S. W. K .. 514. 15 Kemp v, State, 11 Humph.. 3*0, u 1 Car. & M.. 218. S. 92.] NO QUESTION WHERE ACT DONE BY INJURED PERSON. \g\ of the police must be taken to have been acting under the directions of his master ; and that as he not only facilitated the commission of the offence, but actually lifted the latch of the door, and admitted the offender who entered an open door, the latter did not do any act that could make his entrance a burglary : and the acquittal was mainly based on that ground. In Rex v. Higley, 1- a charge of burglary was maintained in the Irish Court against certain persons, though the proprietor of the house had, on being apprised of their purpose, provided a force for their reception, and on their knocking at the door, himself opened it, whereupon the prisoners rushed in, locked the door, and were proceeding further into the house, when his men overpowered and secured them. It was contended that there was neither force not fraud in the entrance, as the owner voluntarily, and with a knowledge of their intention, had opened his door to the prisoners so that a material ingredient of the crime of burglary was wanting. The Judges were unanimous, however, that the offence w r as completed ; but the decision does not appear to rest on sound principles. ls 1 Craw. & D.. 202. CONSENT IS MERELY TO AN ACT. [S. 91, 95. CHAPTER V. THE SCOPE OP CONSENT. 93 . \\ r e must now consider the scope and the extent of consent? the orbit of its operation, and the extent of its effect. This involves an enquiry as to what it is that is consented to, when con- sent is given. It must, in the first place, be made clear that what is consented to is an act, including in that term also the intentional omission of an act. Consent cannot be given merely to a thing or to a person or to any state or condition of things or persons. Strictly speaking there can be no consent even to an event or to the consequences of an act, though as observed above a consent to them is generally spoken of even by lawyers and jurists. The Indian Contract Act has, no doubt, defined consent as an agreement of two or more persons upon the same thing in the same sense. It is clear, however, from tlic context, that the word thing in that definition isused in its most comprehensive sense, in which it means rather an act than its physical object. 94. Consent can besides be only to an act of another person. It concerns vielmehr auf nichts me.hr und Consent can be onlv i , i /> . JT ?/ ., , , mchts iremqer als auf me Handlunq to another s act. A i \ f ,o T-U ^ e. * f des Anderen. ' \ he very definition of consent proposed by Kessler. as erldarte Uebereinstimmung des Willens einer Per son mitder. . . Handluny eines Anderen? (t>} makes it plain that the act consented to must be of another person. One may wish for or intend one's own act, but ho cannot be said to consent to it. SS. 87 and 88 of the Indian Penal Code indeed speak of a person's consent to suffer or to take the risk of harm, but to suffer or take the risk of harm is not an act, and the consent in such cases is really to another person doing the act which must or is likely to cause that harm. 95. The operation of the mind in regard to one's own act corresponding- to the consent to another Distinction between , T -, ,-. -IT consent and will person s act is designated volition or will- g. Thus " will " is the state of mind in (a) Nothing more or less than the act of the other. (b) The declared agreement of the will of one person with the . . . act of another. i Kess. Einw., 26. | 2 yi ( l e Supra, P. 0. S. 95.] DISTINCTION BETWEEN CONSENT AND WILL. favor of a man doing an act which he intends and decides to do, and a man is said to will one's own acts as he is said to consent to another's acts. The cause of consent like that of will is separate and independent of consent, and a person may consent to an act of another as he may will his own acts, even though he does not wish for or approve of them. This distinction between will and consent was long ignored in the English law, and the two words often used synony- mously. Strange as it may appear, no distinction was made even between the opposition to a person's will and the mere absence of his consent. Thus the Statute of Westminster I Ch. 13, provided that no man "should ravish a maiden within age, neither by her own consent, nor without consent, nor a wife or maiden of full age, nor other woman, against her will." Ten years later the Statute of Westminister II, Oh. 34-, provided that " if a man should ravish a woman, married, maiden or other woman, where she did not consent neither before nor after," he should be punished with death, at the appeal of the party ; and, likewise, " where a man ravisheth a woman, married lady, maiden, or other woman, Avith force, although she consent afterward, she should have a similar sentence upon prosecution in behalf of the king." Notwithstanding that, however, every standard writer on criminal law defined rape as the carnal knowledge of a woman by a man forcibly and against her will ; which clearly indicated not merely the absence of consent, but the existence of a will in the woman, which should have opposed the carnal knowledge. This definition was adopted even by Judges in the United States, as well as by some of the Legislatures there. The expressions " without her consent," and " against her will " came there also to be used and understood as synonymous with each other. In Whittdker v. State. 3 Orton, J., observed, " In the law, and in denning the crime of rape, the terms ' against her will' and 'without her consent' are used convertibly. And they are so used in the statutes of many of the States, as in Massachusetts, Vermont, Ohio and New Jersey." As point- ed out by Gray, J., in delivering the opinion of the Supreme Court of Massachusetts in Com. v. Burke,* " the earlier and more weighty authority shows that the words ' against h er will,' in the standard definitions, mean exactly the .same thing 3 50 Wis., 518. I * 105 Mass., 376. 26 194 DISTINCTION BETWEEN CONSENT AND WILL, [g. 95. as ' without her consent ;' and that the distinction between these phrases, as applied to this crime, which has been suggested in some modern books, is unfounded." This confusion was due partly to the circumstance that most of the acts having a legal operation and giving rise to rights and duties, are of a compound nature, consisting of several physical movements by one person or more. Viewed with reference to the movements of different persons, the act is said to be of those persons respectively, and sometimes even designated by different words. The giving of a thing by one person to another is a taking of it by that other. In cases of kidnapping or enticing a person, there is an act by the person kidnapped or enticed which consists generally in going away from his guardian's control. In cases of sexual intercourse, there is often an act Toy the woman as well as one by the man, though there is no special word for the woman's act. So far is the doctrine carried that when a person to whom a an act is done is passive and does nothing against it, his passivity and omission are deemed to be his acts, and designated as per- mitting or submitting to that act, corresponding to dulding of the German jurisprudence. A person giving or taking a thing unconsciously to or from a person is thus said to give or take that thing without his consent, when what is meant is really only that it is given or taken without a conscious volition on his part, or without the consent of the person to whom it is given or from whom it is taken. The distinction has considerable importance in case of larceny, which includes most of the offences relating to the transfer of movable pro- perty ; the offence being deemed theft when the act is looked from the point of view of the person taking the thing trans- ferre d, and extortion or cheating when the act is looked from the point of view of the person giving it. In such cases, if a thing is given to any person unconsciously and without adver- tence thereto, there cannot but have been a will to sfive it, but there may not have been a consent to its taking by any person. So also if a person takes a thing from another uncon- sciously and without knowing of it, he may have taken it without his own will, but there must have been consent to his taking it on behalf of the giver. Similarly in cases of rape, while will and consent are both operations of the woman's mind in regard to the act of intercourse with her, will has reference to her own part of the physical movements constituting that act, while consent has reference to the man's part of those S. 96.] GENERAL RECOGNITION OP THE DISTINCTION. movements, and the intercourse may be rape when there is no consent of hers to his part of the act, or when he does it against her inclination to her own part of the act. 96. The distinction between the opposition to will and the absence of consent was, however, distinctly n i *t* f * recognized in some cases of rape even in the distinction between ^ y -, m T> T^J . i 5 T i consent and will. England. Thus, in Reg. v. Fletcher, Lord Campbell, C. J., who delivered the leading decision, speaking of the proper definition of the crime of rape, said: " Is it carnal knowledge of a woman against her will, or is it sufficient, if it be without the consent of the prose- cutrix ? If it must be against her will, then the the crime was not proved in this case; but if the offence is complete where it was by force and without her consent, then the offence proved that was charged in the indictment, and the prisoner was properly convicted." In Reg. v. Charles Fletcher* the indictment charged the prisoner with having committed the offence of rape against the girl's will and without her consent ; and Pollock, C. B., in the judgment of the Court of Criminal Appeal, observed more than once, that there was no evidence in the case ' ; to establish either that the connection was against her will or without her consent/' In the United States also, in People v. Crosswell? Cooley, J., in delivering the opinion of the Supreme Court of Michigan, even observed ; " We are aware of no adjudged case that will justify us in construing the words * against her will' as equivalent in meaning with 'without her intelligent assent,' nor do we think sound reason will sanction it." In regard to rape, the distinction is most clearly recognized in the Indian Penal Code and the New York Penal Code, according to which, rape may be either against the will of the female with whom the intercourse is had, or without her consent. 8 In explaining the distinction between these alterna- tive expressions, Mr. Mayne says," that the phrase against one's will " implies mental opposition to an act which is anticipated before it takes place. If a man suddenly receives an unexpected blow, he is struck without his consent, but not against his will, which he has no opportunity of exercising." This does not appear, however, to exhaust the difference between the two expressions, which appear to indicate different conditions of 8 8 Cox C. C., 134. I -r 13 Mich., 427. s 10 Cox C. C., 248. 3 I. p. C s . 375 N Y . P. C., S. 278. 9 Mayne Or. L., 5 81. 196 GENERAL RECOGNITION OF THE DISTINCTION. [S. 96. things. She may have a will for intercourse without con- senting to it, as she may consent to it without having u will for it, and the intercourse will be rape if there is no consent, but not if there is no will. Mere absence of will, unlike absence of consent will not constitute rape, as will has reference to an act of her own, and its absence can interfere with her acting, or with the nature or legal character of her act, without necessarily affecting the legal character of the act of another person which he ex hypothesi will do with her consent. It will be different, however, if the act consented to by her is done not in the absence of her will, but against (z. . ] n Art. 236. 12 Art. 237. S. 97.] CONSENT TO ONE ACT NOT CONSENT TO ANOTHER. Avithout her knowledge or will (ohne deren Wissen oder Will en). So also as a general rule, to constitute theft, die Aufhebung des Gewahrsams des Anderen muss ohne dessen \Vllhn geschehen, 13 w and not necessarily against her will. And it is frequently laid down by jurists that the words ohne Willen have not the same signification as wider Willen, and that while for abortion it is sufficient that the consent is wanting, and it is not necessary that sie ihre Nichteinwilligung ernstlich zu erkennen gegelten Jiabe ; 14 . (rf) in case of abduction Mangelnde Zustimmung gemigt zur Erfullung des That- bestandes nlcht. 13 (e) 97. Coiisent to one act is not consent to another act. It is also evident that consent to one act is not a consent to another act, or to anything beyond that act. " Where one person," says Jaggard in his work on Torts, "has consenetd to conduct on the part of another, which but for such consent Avould be a tort, the conduct must fall within the limit of such consent, or liability will attach. Here is applied the general principle that, the authority ceasing, the exemption from liability ceases License to do what would otherwise be a nuisance or a trespass is, co-extensive with the limits of the authority conferred." 16 Thus consent to the use of a certain force is not consent to the use of a different force. A consent to ordinary bleeding as a bleeding, would not be consent to the cutting away of a life artery. 17 Consent to a person entering one part of a house is not consent to his entering another part of the house. 18 So also consent that a physician should conduct an autopsy at a tomb is not a license to remove any part of the remains, for example, the skull. 19 In Fitzgerald v. Gavin the action was for an assault by squeezing the plaintiff's testicles, and it was held that the plea of consent would be tenable, onlv if the act was no X ./ other than what the plaintiff had reason to suppose it would be. On the same principle, a woman's consent to a medical operation is not deemed a consent to an act of sexual (c) The deprivation of the possession of another must take plaoe without his will. (d) She must seriously have made known her unwillingness. (e) Want of consent is not enough for the completion of the act (constituting) the offence. 13 Olshaus. Komm. S. G. B. t 879. 11 Olshaus. Komm. S. G. B.. 780. 13 Olshaus. Komm., S. G. B., 850. ia P. 202. 17 II. Bish. Cr. L , 41. " Living. La. Fen. Code, Art. 607. 19 Palmer r. Broiler, 78 Wis,, 483. 20 110 Mass., 153. ] 98 CONSENT TO ONE ACT NOT CONSENT TO ANOTHER. [g. 97. assault. In Eeg. v. Stanfon? 1 a woman consented to have an injection given by her medical attendant, but while apply- ing that, he commenced sexual intercourse with her, and continued it till she, feeling something warm pressed against her person, resisted. He then stopped, and it was held that the offence of rape or assault with intent to commit rape had not been committed. This decision did not proceed, however, on the ground that copulation was not without her consent, but on the ground that there was no force, which was neces- sary for both the offences, Coleridge, J., observing in his summing up, that " at most it could only be an attempt by surprise to get possession of the person of the prosecutrix, and that is not an assault with intent to commit a rape, but is an assault." It has sometimes even been held that a woman's consent to sexual intercourse with a person is not consent to his infects ing her by the act with a contagious disease. This wa- the ground of the decision in Reg. v. Bennett?* as explained in Hegarty v. Shine, 23 and by some of the judges in Reg. v. Clarence. 2 * In this last case, however, the majority of the Court disapproved of that decision, and the fallacy of the rule in its application to cases of this sort was explained by Wills, J., who observed that "to separate the act (of intercourse) into two portions, as was suggested in one of the Irish cases, and to say that there was consent to so much of it as did not consist in the administration of an animal poison, seems to me a subtlety, of an extreme kind. There is, under the circum- stances just as much and just as little consent to one part of the transaction as to the rest of it. No one can doubt that in this case, had the truth been known, there could have been no consent to even a distant approach of it If the conviction be upheld on the ground of the difference between the thing consented to and the tiling done, the principle will extend to many, perhaps most cases, of seduction, and to other forms of illicit intercourse, including 1 , at least theoretically, the case of prostitution ; and if such difference be the true ground upon which to base a confirmation of the conviction, knowledge of his or her condition on the part of the person affected is immaterial. It is the knowledge or want of know- ledge on the part of the person who suffers from contagion alone that is the material element." Thus Field, J., re- "i 1 C. & K., 415. 23 2 L. E. Ir., 273 : 4 L. E, If., 288. 22 4 Fost. & P., 1105. 21 22 Q. B. D., 23. S. 97.] CONSENT TO ONE ACT NOT CONSENT TO ANOTHER. ferring to the decision in Reg. v. Bennett, said : " As I under- stand, that very learned Judge Willes, never meant to say that any fraud must vitiate the consent, but that a consent obtained to one act is not a consent to an act of a different nature, and if obtained by a fraud as to its nature would not render the act lawful." Referring to the argument, that " connection with a diseased man and connection with a sound man are things so essentially different, that the wife's submission without knowledge of the facts is no consent at all," Willes, J., further said : " It is said that such a case rests upon the same footing with the consent to a supposed surgical operation, or to connection with a man erroneously supposed to be the woman's husband If we are invited to apply the analogy of the cases in which a man has procured intercourse by personating a husband, or by representing that he was performing a surgical operation, we have to ask ourselves whether the procurement of intercourse by suppressing the fact that the man is diseased is more nearly allied to the procurement of intercourse by misrepresenta- tion as to who the man is or as to what is being done, or to misrepresentation of a thousand kinds in respect of which it has never yet occurred to any one to suggest that intercourse so procured was an assault or a rape. There are plenty of such instances in which the knowledge of the truth would have made the victim as ready to accept the embraces of a man stricken with small-pox or leprosy. Take, for example, the case of a man without a single good quality, a gaol-bird, heartless, mean and cruel, without the smallest intention of doing anything but possessing himself of the person of his victim, but successfully representing himself as a man of good family and connections prevented by some temporary obstacle from contracting an immediate marriage, and with conscious hypocrisy acting the part of a' devoted lover, and in this fashion, or perhaps under the guise of affected religious fervour, effecting the ruin of his victim. In all that induces consent there is not less difference between the man to whom the woman supposes she is yielding herself and the man by whom she is really betrayed, than there is between the man bodily sound and the man afflicted with a contagious disease. Is there to be a distinction in this respect between an act of intercourse with a wife who on this special occasion would have had a right to refuse her consent, and certainly would have refused it had she known the truth, and the inter- course taking place under the general consent inferred from a 200 IDENTITY OF ACT AFFECTED BY DIFFERENCE OF INCIDENTS. [8. 98. bigamous marriage obtained by the false representation that the man was capable of contracting a legal marriage ? In such a case the man can give no title of wife to the woman whose person he obtains by the false representation that he is ummar- ried, and by a ceremony which, under the circumstances, is absolutely void. Where is the difference between consent obtained by the suppression of the fact that the act of inter- course may produce a foul disease, and consent obtained by the suppression of the fact that it will certainly make the woman a concubine, and while destroying her status as a virgin with- hold from her the title and rights of a wife ? Where is the distinction between the mistake of fact which induces the woman to consent to intercourse with a man supposed to be sound in body, but not really so, and the mistake of fact which induces her to consent to intercourse with a man whom she believes to be her lawful husband but who is none ? Many women would think that of two cruel wrongs the bigamist had committed the worse." 98 In fact, the correctness of the proposition that consent Identity of act how to one ^ is *> consent to another in far affected by difference never denied, m the abstract ; all the of subjective and objec- differences that have arisen in connection tive incidents. with it being in its application, in the determination of the identity of the act consented to. An act is not an elementary notion. In its strict sense, it indeed denotes a mere bodily movement, a muscular contraction. It is, however, immediately preceded by an exertion of the will, and accompanied by a consciousness on the part of the doer of the act as to the purpose of that exertion ; and both this exertion and consciousness are considered as essential con- stituents of the act. So far is the principle sometimes carried, that when an offence consists in doing without con- sent a certain act for a certain purpose, the act is deemed to have been done without consent, unless the consent to the doing of the act was given with a knowledge that it would be done for that purpose. The German Penal Code, for instance, provides for the punishment of a person, who kidnaps a minor unmarried female with her will, yet without, the consent of her parents or jmardian, to bring her to unclmstity or to O O ' marriage f' and it is considered tlintdie Einunlligung der El tern, M'-., /.-# zu r<>.rxif.'lu'.i) /x EintrillitjiLiKj hi die Entferhung^ litre r 3 S. 237. S. 98.] IDENTITY OF ACT AFFECTED BY DIFFERENCE OF INCIDENTS. 201 Tochter zum Zicecke der Unzmht o. d. Ehe ; demnach schliesst die Einwittigung in die Entfernung, unter Ausschluss jener ZicecJce keinesweges die Moglichkeit einer Entfuhrung aus. 2C ^ Most acts are also followed by consequences, connected with it in various degrees of proximity and directness. Strict- ly speaking, the entire chain of physical sequences which an act sets in morion is no part of the act. To take the case of a person killing by a pistol, the only act of that person is to contract the muscles of his arm and forefinger in a certain way whereby he is enabled to raise the weapon, point it at the person killed, and pull the trigger. What follows on that, are all consequences. The contact of the flint and steel, the ignition of the powder, the flight of the ball towards the victim, the wound and subsequent death with the numberless incidents included in them, are consequences of the act. These all, however, are generally treated as a part of the act. The burial, the agonies of his relations, the succession to his property, the litigation between his heirs, and the suicide of one of them for dismissal of his claim, are also consequences of that same act, but they are not treated as a part of the act. No definite line can be drawn between the conse- quences which may and which may not be considered as a part of the act. However indefinite the ordinary distinc- tion between the proximate and the remote consequences of an act in the law of damages, that distinction has no importance for determining what consequences of an act may be considered a part of the act itself, as several conse- quences of an act otherwise proximate would be too remote for such treatment. The treatment will, however, affect the identity of an act, as an act with certain of its consequences included in it, will not necessarily be the same with the act including all or other consequences. There are other incidents also of an act, which may affect its identity. These incidents may have reference to the agency, object, instrument, time, locality or any other relation. For example, an act must necessarily be done by some person, and an act done by one person is apparently a different act from that done by another. An act may also be (/) The consent of the parents is to be understood as the consent to the taking away of their daughter for the purpose of uncbastity or of marriage ; therefore the consent to the kidnapping, exclusive oftho.se purposes, doe- not exclude the possibility of abduction. a II. Halschner, 244. 26 202 SEPABATE ACTS HOW FAR DEEMED ONE AND THE SAME. [g. 99. done to or for another person and to or for some object, and with one thing or another. And any difference in such person, object or thing may affect the identity of the act, and make it a different act. These differences have however, not the same importance always, and in some cases may be altogether ignored from consideration. As observed above in Chapter II. these are different in different branches of law, and in fact vary even for different matters falling within the same branch. For instance, even the identity of the doer is not important in certain contracts, and the motives of the parties and the quality of the thing contracted for may, generally speaking, be unimportant in all. On the other hand, the identity and the motives are of particular importance in criminal law, and the quality of the thing affected of first importance in the law of torts. Practically, therefore, only those differences are held to affect the identity of an act as are of importance for the purposes of the particular matter under consideration at the time ; and the act is held to be the same, notwithstanding differences in all other matters. The important point in such cases is whether the differences in any case, in regard to the incidents Avhich may be considered a part of the act, are sufficiently important to affect the identity of the act. If they are not, the acts will be considered to be the same, and a consent to the one will be deemed to be a consent to the other also, even though the two be really different. 99. Similarly different acts may be so performed at or Separate acts how far near the same time or place, or to the deemed one and the same person or thing that the elements same - of difference may have no importance for the purpose under consideration, and for that purpose may be deemed to be one act. as different material articles are in law often deemed to be one thing. As observed by Mr. Herman in his Commentaries on Estoppel, 27 "the rule is, that all acts of the same nature, performed at the sametime, are regarded as one act in law." Thus different purchases and dealings running over for years are often held to constitute one purchase and one demand respectively. 28 Even the amounts due on a book -account, though considerable in number, are generally regarded as constituting one debt and one indi- visible demand. 29 In the law of torts, an act causing injuries to different properties or different rights is generally. 27 P. 250. I 2s Chanel ft, s . J u ,l.. G52. au Chand Res. JiuL, Ii55. S. 99.] ^SEPARATE ACTS HOW FAR DEEMED ONE AND THE SAME. 203 looked upon as one act, even though the properties may.be situate at a distance from each other ; though a different rule is sometimes held to apply to injuries to a person, or to different ^fi persons. In the Indian Criminal Law, this general rule is expressly enacted in a very comprehensive form. The Indian Penal Code provides that except where a contrary appears from the context, words, which, in the Code, refer to acts done extend also to illegal omissions ; 31 and that the words, act and omission denote as well series of acts and series of omissions, as a single act and a single omission respectively. And this is recognized in every system of jurisprudence. 'Thus the removal at the same time of several articles from the same place constitutes one act, even though the articles belong to different persons. 32 In "Reg. v. Giddinsf* two persons were assaulted and robbed of their respective properties at the same time, and Tindal, C. J., said that it was all one act and one entire transaction. It ,is but one offence, because the act is one continuous act the same transaction, and the gist of the offence being the felonious taking of the property, it does not appear how the legal quality is in any manner affected by the fact that the property stolen, instead of belonging to one person, is the several property of different persons ; the particular ownership of the property having to be charged in the indictment not to give character to the taking but merely by way of description of the particular offence. The same has been held in State v. Hennessey and in State v. Warren, 35 in the latter of which, Robinson, J., in delivering the opinion of the Supreme Court of Maryland, said : " Upon principle, it would seem clear that the stealing of several articles at the same time, whether belonging to the ' same person or to several persons, constituted but one offence. It is but one offence, because the act is one continuous act the same transaction ; and the gist of the offence being the felonious taking of the property, we do not see how the legal quality is in any manner affected by the fact that the property stolen, instead of belonging to one person, is the several pro- perty of different persons.*' In Hudson v. State* 6 Winkler, J. 30 Chand Res. Jnd., 631-636. I Lorton r. State, 7 Mo., 55. S. 32. Fisher r. Coin., IBush., 211. 32 Palmer r. Com., 97 Pa., 503. Wilson v. State, 45 Tex., 76. Jackson v. State, 14 Ind., 327. :* 1 Car & M., 634. 23 Ohio, 339. 77 Mil., 121. 9 Tex.Ct*App., 151 204 SEPARATE ACTS HOW FAR DELME1) ONE AND THE SAME. j> 99. in delivering the opinion of the court, said : " That when various articles are stolen at the same time and place, the transaction is not divisible, but is one transaction But we must not be understood as holding that different articles taken from different persons and from different places, as from different rooms, of a house occupied by different persons, would necessarily be one transaction ; but, on the contrary, that property thus situated would, on proper averments and proof, support different prosecu- tions. For example, if a thief shou Id enter the room of one lodger at a hotel, and should there perpetrate a theft, and should then pass to the room of another lodger and there commit another theft, these would be different thefts." The words referring to time and place are, however, con- strued most liberally, properties in the different rooms of an ordinary dwelling-house being considered as in one place. Thus Dr. Bishop, in his work on Criminal Law, says: 37 "It seems to be deemed that if an offender breaks the same house at different times during the same night, .all is or may be regarded as one burglary 38 A man may violate the prohibiting statute by ' exercising his ordinary calling' in a single act. Thereupon if he continues to perform like acts throughout the day, does he commit more offences than one ? The judicial answer to this question is that he does not." In Crepps v. Durden Lord Mansfield said : " On the construction of the Act of Parliament (29 Car. 2, c. 7.) the offence is ' exercising his ordinary trade upon the Lord's day' ; and that without any fractions of a day, hours or minutes. It is but one entire offence, whether longer or shorter in point of duration ; so, whether it consist of one or a number of particular acts. There is no idea conveyed by the act itself, that, if a, tailor sews on the Lord's day, every stitch he takes is a separate offence ; or, if a shoemaker or carpenter work for different customers at different times on the same Sunday, that there are so many separate and distinct offences. There can be but one entire offence on one and the same day ; and this is a much stronger case than that which has been alluded to, of killing more hares than one on the same day ; killing a single hare is an offence ; but the killing ten more in the same day will not multiply the offence, or the penalty im- posed by the statute for killing one." p. P. 4,-D, -179. | as p. r . Gibson, 58 Mich., 868. 3 9 2 Cowp. 640. 8. S9.] SEPARATE ACTS HOW FAR DEEMED ONE AND THE SAME. In Woodjord v. People * Q a fire was kindled in a shed to burn a number of dwelling-houses, and an indictment for arson charging their burning as a single act was sustained, even though the several bouses could not burn at the same instant, and could not occupy precisely the same place. Church, C. J., observed, " that if a person should shoot three persons by a single shot, a single count for the murder of the three would be good, 41 although they might not all have died at the same time. 42 ' On a similar principle, having in one's possession at the same time several forged bank notes of different banks with the intent to pass them as genuine, constitutes only one offence. 43 The rule was attempted to be carried to an extreme length in The Queen v. Castro** in which the indictment contained two counts, the one alleging- perjury to have been committed at the trial of an action of ejectment in the Court of Common Pleas, the other alleging it to have been previously committed in an affidavit sworn before the Court of Chancery relating to the same matter. It was contended that the two courts were ancillary to each other, and the steps taken in the two formed one proceeding for gaining possession of the lands claimed, and that all the false statements constituted but one crime. The contention was not allowed, however, for reasons given most clearly by Brain well, L. J., who observed that the point made on behalf of the plaintiff was, that "if a man brings a suit, or several suits, with a view to establish a certain proposition which will entitle him to certain property, although he may tell an infinite number of untruths upon bis solemn oath or upon more than one solemn oath, at a distance of time from each other, and varied in form a.s much as they can be, he commits but one perjury, because the substance of his statement is this, ' I am the person entitled to that estate ; ' and, therefore, that if he says at one time under one oath, ' I seduced a particular woman,' it really only means, ' I am the person entitled to that estate,' and is a mere modification of the same statement and a varied way of putting it; and that, if he afterwards says, ' I was placed at a particular school,' that, again, merely means, 'I am the * 62N. Y., 117. 41 Vide to same effect, Beii r. State, Clem. 22 Ala., 9 ; v. State, 42 Intl., * 2 Vide to similar effect, Reg. r. True- man, 8 Car. & P., 727. * 3 State v. Benham, 7 Conn , 414 420 ; Womack v. State, 7 Cold.. 409 | ** 5 Q. B. D., 490, Contra. People v. Alibez. 49 Cal. 452. CONSENT AS TO ONK ARTICLE NOT CONSENT AS TO ANOTHER. [ g< JQQ person entitled to the estate/ and is a mere modification of the mode of stating the proposition. I really should have thought it impossible that such an argument as that could be presented in a court of justice. The counsel for the plain- tiff in error were driven to admit that, according to their argument, if a man were indicted ;md convicted of having made a false statement upon oath, he would have power to make with impunity as ^ many false statements with reference to the same subject-matter as he pleased. It is enough to state the proposition to perceive that it cannot be true. It was argued that it would be monstrous that a man should be punished twice for what was practically one perjury. To my mind it would be monstrous, if he could not be punished twice. On the contrary, I think that if, un- warned by the first prosecution, he persists in the crime of perjury by telling fresh untruths, not only ought he to be punished again, but he ought to be punished more than he was upon the first occasion. I can understand that if a witness at the beginning of an examination said, ' I am A. B,' and at the end repeated the words, there might be injustice in saying that he had committed two perjuries ; possibly it might be also unjust to charge him with two perjuries, if he had merely repeated the statement at some interval of time. But suppose that a witness were to say falsely, with the view of proving an alibi, ' I saw the prisoner upon a certain occasion,' and suppose that he afterwards were to say upon his oath that he had not been convicted of felony, when in truth he had been so convicted, I see no reason why he should not be punished twice for the two distinct false matters to which he pledged his solemn oath." Robberies of different individual passengers in a stage have been held to constitute distinct offences though com- mitted at the same place and in rapid succession. 45 It has also been held that one who harbours several felons, who had committed a joint crime, is guilty of a separate offence for each person whom he harbours. 40 100. As observed above, several articles are often held to be only one article for the purposes of Consent to taking of tlie act having reference to them Con- one article is not consent ,-1 , ^ . to taking of another the ta g of one article is not article. consent to the taking of any other and separate Article. 'The question has * 5 In re Allison, 13 Colo., 525. * 8 The Queeu v. Richards, 2 Q B D 311. .8. 100. ' CONSENT AS TO ONE ARTICLE NOT CONSENT AS TO ANOTHER generally arisen in cases in which the other article is concealed m the article given or intended to be given, and the person o-ivino- that article is not aware of the existence of the con- cealed article, and has no intention of giving the article given with all its contents. In such a case, if the person receiving that article, appropriates or converts to his own use the article concealed in it, the appropriation will be criminal and an offence 4 There will be no consent to justify its appropriation or conversion. The confusion in the Eno-lish law on the subject was clue to the circumstance, that the common law did not recognize the offence of criminal misappropriation, the more serious cases of it being, rather than not punished at all, dealt with as larceny. The essence of larceny, however, was the taking of a thing from the possession of another animi furandi. The conviction for larceny in such cases could, therefore, proceed only on the basis that the possession of the thing appropriated did not pass to the offender by its delivery along with the article in which it was concealed, and that it remained in the possession of the giver till its existence became known, when it was deemed to have been taken by the person appropriating it. This constructive theory of taking and possession was not correct, but it Avas necessitated by the existing state of the law in regard to larceny and misappropriation. It was attempted to be justified on the ground that there could not be a transfer of the possession of a thing given without a knowledge or consciousness even of its existence. The question of the existence or non-existence of consent in such cases, came into the discussion only, as the feet of the transfer of the possession of a thing was considered generally, though incorrectly, 47 not to depend directly on the know- ledge of that thing, but on a consent to its transfer. And it was held that there could be no consent to the receipt of the possession of an unknown article, as the article was an essential part of the act of receipt, and therefore the act oi its receipt could not be said to be known while the thing- was unknown, and there could be no consent to an act which was not known. Thus in Cartwright v. Green** a bureau had been delivered to a person for repairs, and Lord Eldon, in delivering the Vide Supra, S. S. 64, 65. | 4S 8 Ves., 405. 208 CONSENT AS TO ONE ARTICLE NOT CONSENT AS TO ANOTHER. j- g< judgment of the Court, said: "From all the cases in Hawkins, there is no doubt, this bureau being delivered to the defendant for no other purpose than repair, if he broke open any part, which it was not necessary to touch for the purpose of repair, but with an intention to take and appropriate to his own use what he should find, that is a felonious taking, within the principle of all the modern cases, as not being warranted by the purpose for which it was delivered. If a pocket-book containing bank notes was left in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket and the notes out of the pocket-book, there is not the least doubt, that it is a felony. So, if the pocket-book was left in a hackney coach, if ten people were in the coach in the course of the day, and the coachman did not know to \vhich of them it belonged, he acquires it by finding it certainly, but not being entrusted with it for the purpose of opening it, and that is felony according to the modern cases." In Merry v. Green,* 9 the facts were the same, except that the bureau had been sold. It was contended that there was a delivery along with it also of the money in it to the purchaser as his own property, which gave him a lawful possession of the money also, and that, therefore, his sub- sequent misappropriation of the money did not constitute a felony. Farke, B., who delivered the judgment of the court, said : ** Though there was a delivery of the secretary and a lawful property in it thereby vested in the plaintiff there was no delivery so as to give a lawful possession of the purse and money. The vendor had no intention to deliver it, nor the vendee to receive it ; both were ignorant of its existence : and when the plaintiff discovered that there was a secret drawer containing the purse and money, it was a simple case of finding, and the Ia r ,\ T applicable to all cases of finding applies to this." These cases have been repeatedly approved and followed. Thus in Queen v. A shir ell t w Cave, J., observed that they had established "the principle that a man has not possession of that of the existence of which ho is unaware. A man cannot without his consent be made to incur the res- ponsibilities towards the real owner which arise even from the simple possession of a chattel without further title, and * 7 M. & W., 623. I 50 16 Q. B. D.,201. S. 101.1 CON-SENT MAY BE CONDITIONED OP, LIMITED. if a chattel lias, without his knowledge, been placed in his custody, his rights and liabilities as u possessor of that chattel do not arise until he is aware of the existence of the chattel, and has assented to the possession of it. ... In my judgment, a man cannot be presumed to assent to the possession .of a chattel; actual consent must he shown. Now, a man does nofc consent to that of which he is wholly ignorant; and I think, therefore, it was rightly decided that the defendant in A ferry v. Green, was not in possession of the purse o,nd money until he knevv of their existence." In Ifutlnnachcr v. Harris's Administrators, 1 it was held by the Supreme Court of Pennsylvania that the sale of a drill machine, which unknown to the parties contained money and other valuables, did not pass title to them, though title was passed to every constituent part of the object of sale. Woodward, J., in delivering the opinion of the Court, observed that the contents of the machine were to be distinguished from its constituent parts, and said: "A sale of a coat does not give title to the pocket-book which may happen to be temporarily deposited in it, nor the sale of a chest of drawers a title to the deposits therein. In these cases, and many others that are easily imagined, the contents are not essential to the existence or usefulness of the thing contracted for, and not being within the con- templation or intention of the contracting parties, do not pass by the sale." 101. Consent to an act is sometimes given conditionally, conditioned to the act being done only in Consent may be con- cer t a i n cases, or in the case of certain ditiouetl or limited in , . , __. events or acts taking place or not. HleUniLl* ' Such consent ts the basis of conditional and reciprocal contracts. Nor is it wanting in non-contract law, in which also a consent to the doing of an act subject to certain conditions is not consent to the act, unless and until those conditions exist. Thus in /t*//. v. Hands,* a person was indicted for committing a larceny from what is known as an ** automatic box," which was so constructed that, if one put a penny into it and pushed a knob in accordance with the directions on the box, a cigarette was ejected on to a bracket and presented to the giver of the penny. Certain persons put in the box a piece of metal i 38 Pa. ,491. I 2 16 Cox. C. C., 188. 27 CONSENT TO ACT IS AS USUALLY DONE. [S. IOZ, which was of no value, hut which produced the same effect as the placing of a penny would produce, A cigarette was ejected which they appropriated; and their conviction for larceny was sustained. Lord Coleridge, C. J., with whom the other judges concurred, said : **Ina case of that class it appears to me there clearly was larceny. The means by which the cigarette was made to come out of the box were fraudulent, and the cigarette so made to come out was appropriated/' So where a woman consented to the connection for a small sum of money which the man refused to pay, and he then had forcible connection with her, it was held to be rape. 3 So also if an act is generally done subject to any limitations or restrictions, a consent to the act shall be deemed as given subject to those limitations and restrictions. Thus, if two men were to begin boxing with gloves, one would not be justified in throwing aside the gloves, and striking with his fist. Similarly, the players in a fencing match would be bound to discontinue the moment the button fell off the foil of either. On the same principle, all the recognised rules to a contest must be observed, for they enter into the estimate of the risk in giving the consent. Where two men are sparring, every blow must be fair. * And so it is laid down by East, " That in cases of friendly contests with weapons, which, though not of a deadly nature, may yet breed danger, there should be due warning given that each party may start upon equal term?. For, if two were engaged to play at cudgels, and the one made a blow at the other, likely to hurt, before he was upon his guard, and without warning, from whence death ensued; the want of due and friendly caution would make such act amount to manslaughter/' 5 102. Even where consent is given absolutely to an act, it will be construed to refer only to the act Consent to an act is ag usua n y understood and as usually to the net as usually -. m f .., . , J c done. Ine difference in the manner of doing it may be so material as to affect the identity of the act consented to, and make the act dif- ferent from that to which consent was given. Thus a woman's consent to an act of sexual intercourse, will not justify the intercourse if it is performed in a brutal manner. 6 On the same principle, consent to operate a threshing machine with u damper down does not bar an action for damages 3 S. v. Long, 93 N. C., 542. I 9 East P. C., 269. * ilayiie Cr. L ., 394. o Richie r. State, 58 Ind., 355. S. 103] CONSENT TO ACT IS NOT TO ALL ITS CONSEQUENCES- 211 resulting from operating it with the clamper open in a hioh wind. 7 (Similarly, participants iu a violent game assume only the risk ordinarily incidental to their sport, but such ordinary risk does not include wrongful and intentional inflictions of injury. 8 As observed by Mr. Starling in commenting on section 87 of the Indian Penal Code, *'the consent given being to take a cartain kind of risk, the amount of risk must not be increased, nor the kind thereof changed ; and this involves the necessity that both parties should strictly observe all the rules of the game or pastime in which they are engaged, though, of course, it is quite competent to either party in the course of the game to take upon himself a greater amount of risk than he agreed to at first." So also, consent to the performance of a surgical operation for the cure or extir- pation of diseasa will, in the law, justify the use of force ; but cannot bar an action by the patient for intentional violence or negligence on the part of the physician. 103. Consent to an act is not a consent to all the con- sequences of that act. The contrary is Consent to an act is ofteQ maintained on the analogy of the not consent to the conse- i , i , , 3* * quencesofthatact. doctrine relating to intention. An intention to do an act is generally held to be an intention to produce the natural consequences of that act, and this on the ground of a presumption that every person knows the consequences of his acts, and may, there- fore, l^e deemed to have intended them. Several German jurists have taken that view of consent. Thus Ha'lschner says, 9 Die Verletzumj ctes Einwilllgenden setzt voraus class dieser die Verletzung nicht nttrwunschi, sondern wil^ beabsichtiyt, darum auch mit dem Bewnsstsein handelt, sie selb&tlhatig za verursachen, indem er, e'ui.n Anderen anstiftet und sick disselben zur Verwirkiiv'iung seiner Absicht bed-lent f l) Rodenbeck goes still further, and says, der Getodtete ist bei der Todtung el ties Einwillijsmlen die Seele des Un- (i) The injury to the consenting person presupposes that he not only wishes the injury, but wills, intends it, and, therefore, acts with the consciousness of causing it to himself, in as much as he instigates another, and avails himself of the same for the realization Of his intention. 7 Garrison v. Gniyb'll. 52 Mo. A pp., I 8 Jagg. Torts 202. 580. 9 Ger. S. xxxr, 76 ff. CONSENT TO ACT IS NOT TO ALL ITS CONSEQUENCES. [S, tcrnelmens, der Todtende nur seiti Werkzeug ){< * According to him when a man wills a eause he must will all the pos- sible consequences of it, which even Halsehner observes is making violence of the conception. Ortmaxm 031 the other hand says ]1 , " Wer die Wirkung will, muss auch die Ursache wollen (t>12 These views are not shared, however, by other ju- rists. Thus, Laden says that it is not to be overlooked that con- sent die Verletzung keineswegs immer vorhanden ist, icenn der Verletzte in die H auditing yewilligt hat, welche die Verletzung zur Folge yehabt hat. 13(l) The correct rule appears to be that laid down by Breithaupt,who appears to think that consent to an act is consent only to such consequences of it, as were intended by the person giving the consent, and not to such as may have occurred to him merely as possible. Thus he in his Work on Volenti non fit injuria 14 says : Wenn nun Jemand in die Vor- nahme einer Handlung uitligt, welche an und fur sich durchaus nkht verletzend ist, und diesealsdann eine weitere Handlung. zur Folge hat, durch welche eine Verletzung eintritt, so ist kein Spielrauinfur die Anwendunj unseres Satzes^ da der Verletzte in die Handlung nur insoweit eingewilligt ha f , ah dieselbe ohne eine Vorletzung zuzufdgen ausgefiihrt werden sollte. Ob ihm hierbei selbst die Moglichktit vorgsschwobt hat, dass falls die Handlung anders ah in der beabsichtigten Weise zur Ausf&hrttng kame, ein ihn verletzender Erfolg eintretcn kcinnte, ist vollstandig Qleichgiltig, da dieser Erfolg gar nicht beabsichtigt und in Folge dessen nach unseren obigen Ausfiihrung,en, eine Einwilli- gung in denselben unmoglich war. Diese kann absr nurzu etwas BeabsicJitigtem gegeben werden und es genilgt durchaus nicht, dass der Verletzte sich vielleicht bewusst icar, dass er sich durch die Ertheilung der Einicilligung einer Gefahr avssetzt. Kessler lays down broadly that Die Eimvilligung ist ftein Wollen des Erfolges; (m) but even he admits that wurde A (n) die Zerstorung der Sache nur dann ' gewollt haben, wenn er sie als eine sichere Folge des Schusses vorausgesehen hdtte. (j) In case of the killing of a consenting person, the person killed is the soul of the undertaking, and the person killing only his tool. (A) Who wills the efiect must also will the cause. (I) to the injury is by no means always present when the injured persoa has con- sented to the act, which has caused the injury. (m.) Consent is not willing the consequences. (n) A would have willed the destruction of the thing only when he had foreseen it as a certain consequence of the shot. 10 Kess Einw.,24. 11 Goltd. A; xxv, 118. " Kess. Eiuw., 23. 13 Luden Hanob., 323. 14 P. '-6. 15 Kess. Eiuw, 25. g. 104.J CONSENT CAN BE ONLY TO FUTURE ACT. 213 CHAPTER VI. EFFECT OF CONSENT. 104. Consent can only be to an act which is to be done. The act may have reference to any other pnst Consent can be only , -, . .r; . to a future act ac ^' eveij t or transaction, but it can receive consent only so loner as it has not been done. The most important development of consent is contract, and a contract is to do or not to do something in future. Even in the case of a contract in discharge or satisfaction of a previous contract, the act consented to is that of discharge or satisfaction, and not of the previous contract, So also in the case of a tort. Kessler broadly observes that Die Einwilligung muss aer Hand- luiig vorausgehen, (o) and gives as a reason for it, that nur u-cnti dass Interesse schon preisgegeben war, Jconnte es nicht verletzt werden. 1 ^ Breithaupt in his work on Volenti non fit iiijuria* discusses this question at length and says : die betreffende Verletzung, in welche ewgsir'dligt icird, eine erst beabsichtigte scin muss. Sie darf also noch nicht ausgejiihrt seiu, wenn iiberhaupt die dazu gegtbene Einuilligung das in Rede stehende Rechtsverhifltniss mit dtm Satze rolenti non fit iniuria soil in Zusammenhang briiK/en diirfen. 1st die [Iandlunrunde stra/lox, dass sie nock nacli Btgihuny der llandlung ertheilt wurde, sondern deshalb, wsil der llandelnde sclion vor der Uegehung die Ueberseuyung hatte, dass er im Einverstdndniss mit dent Willen des Andern kandelte. Es ist uls > recht/ick die Situation ebenceil das jus publicum, das privatorum pactis mutari nequit sie fur strafbar erklart, und der Deliktscharakter ihr durch den Will en des Verletzten auf Icemen Fall genommen werdenkann^ The public have a right to see that penal laws are strictly enforced, and it is only in a few exceptional cases that the Legislature has left their enforcement to the will of the indi- vidual. In India it is only in case of defamation, offences (a) A subsequently declared consent would have only the significance of a private pardon, which the penal law. as is well known, does not respect on principle. (h) A subsequent consent per ohance granted by the injured can have an effect in civil law, between the directly concerned interested parties, and indeed it may bear with it the character of a personal pardon, or it may release the doer from the obligation of making reparation from a civil point of riew, but to this alone will it, however, limit its effect ; it remains criminally punishable, because public law, which an agreement of private persons cannot change, declares it punishable, and the character of an offence can in no ease be taken from it by the will of the injured. 14 State *. Hartigan, 32 Vt., 611. j 16 Kess. Einw., 104, 15 Kess. Einw., 104. l7 P, 22, 38 218 CONSENT DISTINGUISHED FROM SUBSEQUENT APPROVAL, [g. 105. relating to breach of contract, and some of the offences relating to marriage, that a criminal court cannot take cognizance of them -without a complaint from some person aggrieved by the offence. 18 When a complaint is once made, the absence of the complainant does not necessarily result in an acquittal of the offender even in the pettiest cases. 19 It is only in case of trivial offences, punishable with fine only or with imprison- ment for less than six months, that the complainant may withdraw the complaint, but even then only with the permis- sion of the court, obtained on shewing that there are sufficient grounds for the withdrawal. 20 The omission in such cases of the individual to take action for the punishment of the offender saves the latter from punish- ment, but the legal effect of this non-punishment is not quite the same with that of the non-commission of the offence, as would be the case, if a consent subsequently expressed could, like that previously given, altogether exclude criminality. The person aggrieved may also compound assault, wrongful confinement, criminal trespass, and a few other offences, but they are all of a private character ; and in case of any aggra- vation of the offence of voluntarily causing hurt, there can be no compounding without the permission of the court before which the prosecution for the offence may be pending. The compounding, moreover, does not contemplate mere consent of the aggrieved person, but also the receipt by him of some consideration or gratification not necessarily of a pecuniary character, for dropping the prosecution. 21 The Spanish Penal Code provides that the husband can, at all times, remit the penalty inflicted on his wife for adultery, by reuniting himself :rnew to her; 22 and the French law also appears to be the same, 'i he effect even of such provisions is not to remove or undo the criminality of the wife. Nor is compounding allowed in cases of theft and rape, as that generally involves an approval of, or what is ordinarily called consent to, a prior offence. This consent, therefore, does not affect those offences in any way, and is entirely inoperative in their case. Consent could hardly fail to involve a screening of the offender from legal punishment, or at least not proceed- ing against him for the purpose of bringing him to it ; and a consent thus given in consideration of money or other gra- 18 Act X. of 1S82. ss. 198. 199. al Murray v. The Queen-Empress, is Act X of 1882, s. 47. I. L. It., XXI Cal., 112, 115. a Act X. of 188:, s.248. 22 Art. 360. S. 103.] CONSENT MUST EXIST AT THE TIME OF THE ACT. 219 tification paid or promised, so fur from purging the offence, may often constitute a fresh offence ; F.nd it is settled law, that a subsequent agreement to receive compensation for the injury caused by the offence will not be deemed such a consent to the act constituting the offence, as may affect its criminality. 23 In cases of theft, even the restitution of the property stole:. may, in some cases, be an offence in both the giver and the receiver, and the restitution is not recognized in any case as affecting or excusing the criminality of the act of theft in any TV ay. As to rape, the 13 Ed\v. 1, St. 1 c. 34 expressly provided that, " If a man ravish a woman, where she neither consented, neither before or after, Ayt Judgment de vyet member ; if she assent after, yet the king shall have the nul" That sta- tute has been repealed, but the law remains the tame, and consent subsequently given does not exculpate the offender. 106. It is a general doctrine that consent to be operative Consent must exist at must exist at the time of the doing of the the time of the act. ac t consented to. It is an ordinary prin- ciple of German Jurists that die Einicilligunt/muss zur Zeit der Handlanij fortdauern.* Va} Thus Breithaupt in his work on Volenli non fit injuria 2 * says : Erforderlich 1st auch, dass swis- chen der Ertheilung der Eimcilligung und der Zufiigunq der Verletzung zeitliche Kontinuit'dt herrschen muss. Deshalb ist eine Einii-iUigung, von welcher nicht unmittelbar darauf Gebrauch gemacht wird, nicht mehr icirksam ; eine Berufung auf dieselbe iciirde dem Verletzenden nur in dem Fatte gestattet sein, wo die Fortdauer der Einidttigung erklcirt wird (b) Consent may, there- fore, be withdrawn at any time before the act consented to is done, and a consent thus withdrawn will have no existence at the time of the act. and not exclude or excuse the criminality / of the act. For example, Ortniann says, ** that em Gut durch die Einwilligung in die Verletzung bis zum ettcaigsn Widerrufe dieser Einwilligung die Eiyenschaft eines gischiitzten Rechts- gutes verliere. (c This is a direct result of the principle that (a) Consent must continue at the time of the act. (b) It is also necessary that a continuity of time must exist between the granting of the consent and the causing of the injury. Therefore the consent of which no use ia made directly, is no more effective. A person committing the injury would be allowed to rely on it only where the continuity of the consent had been declared. ( c ) An interest through consent to the injury loses the quality of an interest protect- ed by law. until consent, as is possible, be withdrawn. 3 State v. Hammond, 77 Mo., 157. [ >* Kesa. Einw., 108. 25 P. 32. 220 CONSENT MUST EXIST AT THE TIME OF THE ACT. r S. 106. the consent to a person doing an act does not give that person a right to the doing of that act. Breithaupt in his work on Volenti non jit iniuria 26 says : Wenn nun auch der T hater auf Grand der gehb'rig ertheilten Einwilligung seitens des Berechtigten in die Lage versetzt wird, an Him die Verletzung auszufiihren oh tie dadurch seine Subjelctivitdt zu beein- tr'dchtigen, so erh'dlt der Erstere jedoch kein absolutes erzidng- bares Recht auf Vornalune der Verletzung, da dasselbe ihm jederzeit durch die Zuriicknahme der Einwilligung wieder ent- zogen icerden kann. Dieses Eechtes begiebt sich der Einwilligende mit der Ertheilung durchaus nicht, sodass es unricMig ware zu sag en, er sei nun auch auf jeden Fall verpflichtet, sich die in Rede stehende Verletzung gefallen zu lassen. Respektirt daher der Thater einen vor Vornahme der Verletzung etwa erfolgten Wider, ruf der Einwilligung nicht, so Jcann er sich nicht mehr auf letztere berufen, er ist vielmehr mit der poena ordinaria zu bestrafen. (u) The rule is acted upon in the English law also. Thus, where there is evidence tending to show that the prosecutrix consented to sexual intercourse with a man, but withdrew such consent before the consummation of the intercourse, the man may be found guilty of rape. 27 On the trial of a man for rape on his step-daughter, a girl of twelve years, and small for her age, it was held that it would be rape, if she in the first instance consented to the sexual intercourse with him, but after the commencement of the sexual intercourse, withdrew her consent, and he forcibly continued it with knowledge of her dissent. In Stephen v. State, the intercourse was had with a girl above the age of consent, which, in that case, was ten years. The court said, that as her passions had not arrived at a maturity to authorize a supposition of sexual intercourse with her consent, and her person had been most shamefully outraged, the jury ought to seize upon the slightest proof of resistance notwithstanding she may have been enticed to give her consent in the first instance even the (a) If now the doer on the grounds of a properly given consent on the part of the enti- tled person is placed in the position of committing the injury without thereby infringing his subjectivity, so does, however, the former receive no absolutely enforceable right to the undertaking of the injury, as the same can be again taken away from him at any time by the withdrawal of consent. The consenting person does not at all give up thi-. right with the granting of consent, so that it would be wrong to say that lie was bound in every case to allow the injury in question to be committed 011 him. If, therefore, the doer does not respect the recall of consent before undertaking the injury, so can he not rely upon the latter (consent), he if rather to be punished with the ordinary punishment. 86 P. 32. | 21 State r. MoCaffrey, 63 Iowa., 479. 28 11 Ga., 225. S. 106.] CONSENT MUST EXIST AT THE TIME OF THE ACT. 221 usual struggles of a modest maiden, young and inexperienced in such mysteries, to find, in just such a case, that the act was against her will, and that the presumption of law was so strong as to amount to proof of force. In German Law, Kessler goes even beyond this, and says die Einwilligung muss unmittelbar vor der That erklart u-erden. w(9] After observing that it is not the withdrawal of the consent, but its continuance that will require a declaration ; he adds that strictly speaking there is neither a Wiederruf noch cine Fortdauer der achten Einwilligung^ sundern nur einen einzigen Act der Einwilligung im Momente der Hantttung.* This will be specially so, when the act is such as can be done only in the immediate presence of the person giving the consent. To illustrate this, Kessler says, that if A one evening to please B, a medical man, expresses his willingness to undergo an operation after being given chloroform, by way of experiment, and B afraid of A withdrawing his consent, administers chloroform to him, while he is asleep in the night, and performs the operation, he will not be liable to punish- ment according to Ortmann, but that every one will be agreed that he ought to be punished. Even Kessler admits, however, that an earlier expression of consent may have a practical significance so far that ihretwegen utiter Umstdnden schon e'm bloss passives Verhalten desjenigen, der sie abgegeben hat, unmittelbar vor der That sich als ausdriickliche Eitiwilligunq darstellt, wahrend dies ohne seine vorangegangene Erklarung nicht der Fall sein wiirde. sl(i] And this will be so chiefly if the act consented to may be done in the absence of the consenting person. Thus Kessler says, " Prak- tisch ah/eschw'dcht wird die Wichtigkeit dieses Erfordernisses bei Handlungen, die in Abrresenheit des Einicilligenden geschehen kojinen, dadurch, dass der gute Glanbe des Thaters an die Fortdauer der Einidlligung gleich dieser die Strafbarkeit aus- (g) Consent must be declared immediately before the act. (h) Withdrawal nor a continuance of real consent, but only a particular act of consent at the moment of the act. (/) On account of it, under circumstances, the mere passive conduct of him who has given it (his consent) directly before the act (consented to), represents itself as an ex- press consent, while that without his previous declaration would not be the case. 89 Kesa. Einw., 109. | *> Kess. Einw., 110. \ 3i Kess. Einw,, 110. 222 CONSEIfT MUST ME OF PERSON HARMED. [S. 107. schliesst. 32 (/) And the case will be different if the person who had given the consent before, should be present, but unconscious. Thus, Kessler says, 33 Der gute Glaube an die Fortdauer der effective* EinwiHigung kommt hier nicht als moglich in Fraye. Straflosigkeit Icann daher niir eintreten, wenn der Thater ehrlich uberzeugt icar, dass der Andcre bei vorhandenem Bewusstsein einwilligen iciirde. w And the previously expressed consent would not be of import- ance as a proof of his good faith, and it would be a strong- indication to the contrary, wenn er den bloss Schlafenden zu icecken unterlansen h'dtte (l) ; and if the unconsciousness is simply that of sleep, as in the case of the surgical operation mentioned in the illustration given above, there would be no question that there was no consent. 107. In matters of civil law, a third person's consent is so netimcs essential to the validity of a Consent must be of trailsaction but this is generally as the person to whom harm . ~, . , J . Is caused. transaction affects some right ot that person ; or because that person repre- sents entirely or partially a party to the transaction, and gives the consent to supply or supplement the consent required of that party. As an instance of the former, a person may by a will or deed devise or assign another person's property to some one, and the devise or assignment will not take effect without the consent of that person. Nor may a part-owner make a contract in regard to the joint property without his co- sharer's consent. As an instance of the latter, reference may be made to contracts by adult minors and insane persons, which are not valid unless consented to by their curators or committees of management. In certain systems of law, even females who have attained majority, require the consent of their guardians to their marriage, and after marriage the con- sent of their husbands to certain contracts affecting their property, though the number of these is steadily decreasing. 0') The importance of this requirement will be practicrlly waakoued in case of acts, which can take place in the absence of the person consenting, inasmuch as the good faith of the doer in the continuance of consent, like consent itself, excludes penality. (It) The honest belief in the continuance of effective consent does not oome into question here as po.-sible. Immunity from punishment could, therefore, only exist, if the doer were hone; tly convinced, that the other would consent in case of existing consciousness. (I) When he has omitted to awaken a perscu merely sleeping. aa Kess. Einw., 111. | as Kess. Einw., 111. S. 107.] CONSENT MUST BE OF PERSON HARMED. 23 This system of representative consent is in case of minors, insane persons and others unconscious at the time, recognized in the criminal law also, and will be referred to in sequel. In section 361 of the Indian Penal Code, the consent of some person legally authorized to consent on behalf of the person kidnapped is mentioned as equivalent to the consent of that person himself ; but the legal authority to consent otherwise than as an agent (whose consort is really that of the person himself) can exist in the case only of minors or insane persons. As an apt illustration of the necessity of the consent of a guardian to the act of a minor in the criminal law, reference may be made to Article 399 of the Spanish Penal Code, which provides a punishment for a minor who should contract a marriage without the consent of his father or mother or of persons who take their place for that purpose. Apart from such cases, it is clear, as a general rule, from the very nature of consent, that the consent to negative an injury must be of the person to whom the harm is caused by the act constituting the injury. The act, though directed against one person may sometimes cause harm to other persons also ; but then it will, as regards each, constitute a distinct injury, and the consent of each person will have an effect on it only so far as it is an injury against himself. Thus seduction of an unmarried girl is an injury to her as well as to her father, and the consent of either cannot bar an action for damages by the other. In criminal law, this recognition of an act as an offence against several persons is not frequent, as the harm caused by the act to others than the person directly injured, is often of too remote or slight a character to be taken cognizance of by law. The same principle is applicable, however, to different offences, when they are recognised by law as resulting from the same act as causing injury directly to several persons. Thus, sexual intercourse with a married woman, may constitute the offence of rape, adultery, or forni- cation. The rape is an offence against the woman herself, and it is her consent alone that can prevent the intercourse from amounting to that offence. Her husband's consent and even positive help will be immaterial, except so far as it may make the husband guilty of abetting the offence. In fact, under the present law, a husband having intercourse with his wife under a certain age, may himself be guilty of rape. The rule is different, however, in the case of adultery, which is 224 CONSENT MUST BE OF PERSON HARMED. [g. 107. an offence against the husband, and which, at least in British India, can exist only if the husband did not consent to, or con- nive at, the intercourse. The woman's consent in case of it is entirely immaterial, the offence being committed, equally whether she consented to the intercourse or not ; 34 though in certain systems of law, she will, in case of its being committed with her consent, be deemed an abettor of the offence and pun- ishable as such. The offence of fornication wherever recognized, is neither against the woman nor against her husband, but against the society ; and so the consent of both the former will be immaterial, and the person guilty of that offence punished without any regard to it. So also carrying away a young woman may constitute the offence of abduction or kidnapping from British India, or of kidnapping her from her father, or of enticing her away from her husband. Now, abduction and kidnapping from British India are offences essentially against herself* and cannot exist if she consented to go and did go with her consent. For abduction, it is indeed necessary that she may be compelled by force, or induced by deceitful means, to go from any place ; and if she consents to go, unwillingness of or even opposition by all her relations together, shall not render possible the existence of compulsion or of enticement by deceitful means. On the other hand, kidnapping her from her father is an offence against the father's right of guardianship, and cannot exist where she is taken with his consent, and no consent by her will prevent such kidnapping from being an offence, or excuse its criminality. This distinction is recognized in almost every system of law. The latter offence was, for instance, in French law, particularly called raptus in parentes, as in such a case, la personne ravie etait sous la puissan'ce de ses pere et mere, tut en r ou curateur ; c'est contre eux que le rapt etait commis; et le consentement de cette personne rieffacait nullement le dclit, parce que la seduction paraissait plus odieuse encore que la contrainte.* 5 Livingstone's Code expressly laid down, that u if any female, under the age of fourteen years, be taken away from her father, mother, tutor, or other person having legal charge of her person, without their consent, either for the purpose of marriage, concubinage, or prostitution, it is an 3 * State v. Sanders, 30 Iowa, 682. I * IV. Adolph. and Helie, 491, State . Donovan, 6J Iowa, 278, S. 107.] CONSENT MUST BE OF PERSOX HARMED. 225 abduction, although the female should consent, and although a marriage should afterwards take place between the parties." 3G The same is the casein regard to the enticing away of a married woman, which is an offence essentially against the husband, and it has been held, can exist only when there is no consent or connivance on the part of the husband. 37 The wife's own voluntary determination to leave the husband is, on a charge of that offence, entirely immaterial. 37 Even her willingness and consent, evidenced by her solicitations of the man, and actual complicity in going away, are no defence for the man. 33 An assault against a woman is recognised as an offence only against her, and though it may cause harm to her husband, yet his assent is not a defence against an indictment for it. 39 The question has not arisen in regard to other offences, but when it arises will no doubt be disposed of in the same way. It has thus been held, that on a prosecution of a postmaster's assistant, it need not be shown that the embezzlement was without the postmaster's consent 40 , as the offence being against the Government the consent of the postmaster is quite immaterial. So also trespass in a place of sepulture with the knowledge that the feelings of any person are likely to be wounded by it is an uffence, even though the trespass be effected with the consent of the owner of that place. In Queen- Empress v. Subhan* 1 Knox, J., based that decision on the ground that he saw "no reason for restricting the original meaning of the word (trespass), which covered any injury or offence done, and to couple it with entry upon property." It may, however, be justified 011 the principle that the consent of the owner could not affect the crimi- nal character of the act as against the person whose feelings Avere offended by the disturbance of graves in that place. So far is the principle carried, that a person^s consent can have 110 effect in regard to any property after the cessation of his in- terest in it, as he would not be the person injured by any act then done to or in respect of that property. Thus it has been held, that the consent of a person will not defeat an indictment for larceny ss Art. 45>S. a ? Queen v. Srimotea To Wee 1 W. 1!. Cr.,45. 3S The Queen r. Kumarasami, 2 M. H. C. R., 331. 29 39 State r. PoylHinl. 1'. Kan., IfO. * Faust c. United 81; te<, 163 U. S., 453. 4 I. L. B., XVIIC Al)..8"6. ,)2(| CONSENT MUST BE OF PERSON HARMED. [S. 107. committed after his death of what was his property, as he will not be the person who will then be affected by it. 43 In the English law, larceny being an offence essentially against ownership, it may be considered a general rule, that a person taking a thing from another who is merely in charge of it, and thus has no power to make a valid transfer of it, may be guilty of larceny. The principle is recognized in the United States also. Thus in State v. McGarteyf 3 it was held that the fact of the accused having obtained the property by consent of a person entrusted with' it by the owner, under such circumstances as rendered the custodian guilty of embezzle- ment, would not prevent the accused from being convicted of larceny. So where the cashier of a bank was charged with embezzling, abstracting and wilfully misapplying the moneys and funds of the bank, with intent to injure and defraud the bank ; it was held, that in order to disprove the averment of intent, he could not prove that his taking the funds and using them in stock speculations were known to and sanctioned by the president and some of the directors of the bank, and that his dealings therewith were intended for the account and benefit of the bank, and believed by him to have been sanctioned by them, although there was no resolution of the board of directors authorizing or sanctioning them. 44 In English v. State, 45 a horse was taken away from the possession of a person, who was not the owner but held it for him, and the Supreme Court of Texas held that the taking if without the consent of either of them, might constitute larceny. This does not appear to be generally accepted as correct. Thus the Revised Saxony Penal Code of 1868 43 expressly enacted that, Sind Jnhaber und Eigenth Umer rersch/'edene Per- sonen, so schliessi schon die Eimnlligung des Einen von Beiden 'den Begriff des Dielstah/s aus. (a) And it is a general rule, that where two persons stand in the position of the owner, the consent of even one of them, will prevent the taking being larceny. Thus where the indictment connected A, B, and C, with the ownership and possession of property, two of whom were special owners, and the jury was charged to convict if the taking was without the consent of A, B, or C, or either of them, the (a) If the possessor and the proprietor are different persons, the consent of one of the two will already exclude the conception of theft. * 2 Snced r. State, 4 Tex. App., 514. I ** U. S. r. Tain tor, 11 Blatchf., 374. 43 17 Minn.. 76. is 15 g. w . Rep. 649. *s Art. 272. S. 107.] CONSENT MUST BE OP PERSON HARMED. 227 instruction was held to be wrong, as authorizing conviction if any one of the three failed to consent. 47 Where the real owner is not known, however, the person in possession will be deemed to be the heir, and his consent will be sufficient to negative larceny. Thus where the owner of a heifer was unknown, and it was taken from the possession of a person, on whose premises it ranged astray, it was held, that he would be the person injured by the theft, and his consent would be necessary to prevent the taking being a theft. 48 In India theft is an offence essentially against possession, and the consent of the person in possession to the taking of the thing will prevent the taking being larceny. The possession of wife or servant on behalf of the husband or master is deemed to be the possession of the latter himself, and therefore if his property is taken from the possession of the wife or servant, the consent of the latter will not be sufficient to avoid the criminality of the taking. Thus, as a general rule, the consent of a wife to the removal of her husband's goods does not affect the criminality of the removal, unless the goods are such as may be deemed to be hers, or in her power of disposal. So the illustration ( ' attached to the definition of theft in the Indian Penal Code 49 provides as follows : " A asks charity from Z's wife. She gives A money, food, and clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive that Z's wife is authorized to give away alms. If this was A's impression, A has not committed theft." On the other hand, the illustration 00 runs: " A is the paramour of Z's wife. She gives A valuable property, which A knows to belong to her husband Z, and to be such property as she has not authority from Z to give. If A takes the property dis- honestly, he commits theft." The same has been held in the case of a servant also. Thus in Reg v. ffanmanta 50 the consent of a Government Inspector of forests to the removal of wood by a person from a forest in his charge was held not to affect the offence of theft com- mitted by that person on account of the removal. Melvill, J., in delivering the judgment of a Division Bench of the Bombay High Court, said : '* The fraudulent consent of the Inspector does not affect the case against those concerned in ** Woods v. State, 26 Tex. App., 4!0. I * Spruill r. State, 10 Tex. App., 695. Jones r. State, 28 Tex. App., 42. * 9 S. 378. so r. L. B., I Bom., 010. 228 CONSENT NOT AFFECTED BY ITS MOTIVE. [s. the dishonest removal of the wood. The Inspector was a servant of Government, and the wood was in his possession on account of Government. The possession of the Inspector was, therefore, the possession of Government, and a consent, which he was not authorized to give, cannot be construed in favor of the accomplice of his breach of trust into the consent of Government.*' This is in accordance with the general principle that the consent to the removal of a thing to exclude criminal liability must be of the person who can dispose of that thing. Thus Riidorff in his Commentary in the German Penal Code l says : Jedoch muss der einirilligende Inhaber Dispositionsbefugniss haben. Deslialb wurde Diebstahl angenommen, obwohl einmitdem Verkauf betrautes Kind IVaaren aus dem Laden der Eltern imentgeltlich hingegeben Jiatte. Die Wegnahme kann auch durch Vermittelung Drifter als Werrzeuge (Kinder, Unzurechnungsfiihige oder Getauschter) geschehen, in welchem Falle der sie Benutzende als Wer/nehmmder erscheint. (a} 108. Whatever may be the legal effect assigned to consent in any case, consent will produce that effect, Effect of consent not howsoever it may have been given. The affected by motive of its ,. .,, , . 7 , , . & . motive with which consent is given m any 8 lvl g- . . o. , J case is immaterial. It may have been given with the greatest reluctance, and still it will have the same effect. 2 A maid- servant reluctant to the point of tears consented to an examination by a physician, at the request of her mistress, to see if she was with child, and it was held that she could not recover for it. 3 If the view here advanced is correct, Mr. Mayne can hardly be right in observing in his work on the Criminal L iw of India, 4 that " an unwilling consent is not a consent at all." Nor has he cited any authority in support of that view. The question in regard to the effect on consent of motives for giving it arises most often in cases in which absence of consent is essential to an offence ; and to secure acquittal on a charge of such offence, it will only be necessary (a) The possessor who consents must, however, have the authority to dispose. It was therefore considered to be theft, although a child entrusted with the sale had given away goods from the shop of the parents free of charge. The removal may also take place by means of third parties as tools ( children, incapable or deceived persons ). in which ease tlio person making use of them appears as the rem.>\.T. 1 P. 521.. 2 Cjnuers r. State, 47 Wis., 523. Reynolds v. State, 27 Neb., 90. People v. Morrison/ 1 Park. Cr. R., 62G. A,uschieks ?. App., 524. 3 Tatter r. I'-radd 148. ' P. 802. Cfc State, G Tex. 11. r,n L. J. Q. 1]., S. 108 j CONSENT NOT AFFECTED BY ITS MOTIVE. 229 to show that there was consent. Thus where a person found in possession of stolen property, said that he would rather be whipped than stand a chance of heing sent to jail ; and on his earnest entreaties a person gave him a few stripes with a switch and released him; it was held not to be an assault, even though he was afterwards judicially punished, and had given his consent only with a view to be saved the punishment for his offence of theft. 5 This principle often comes into operation in what are called decoy cases. It is held in them, that even though consent is given to a criminal act merely with a view to the detection of its doer, the act will be deemed to have been, consented to, and on that grou nd to be free from criminality Thus where a prisoner of war was allowed to go beyond the limits of his parole for the detection of a person who was supposed to have been instrumental in the escape of several other prisoners from the same place, that person was held not to have committed any offence, by assisting that prisoner to escape out of the limits of his parole, 6 as there was no escape or intention to escape in that case. So if the owner of a property consents to another person taking that property with a view to prosecute that person, there is no theft, as for theft it is necessary that the property should be taken without the owner's consent Nor can robbery be held to have been committed, if the victim and another person arrange that the former should meet the latter and the offender at a certain place, and go through the form of being robbed for some purpose of their own. 7 And where several persons arranged among them- selves that two strangers should be procured to rob one of them who should be stationed at a designated place in the highway for that purpose, with a view to obtaining the reward ottered for the apprehension of robbers, the court held that no robbery had been committed, 8 as the property would not have been taken in such a case without the consent of the person robbed. In such cases, if the owner give up the property demanded to the person demanding it with threats, not on account of the fear created by them, bub with a view to secure his conviction, there will be no offence committed, 9 even apart from the question of consent. 5 State v. Beck, 1 Hill, 363. 6 PCX. v. Mai-tin, Ross. & R., 19G. i People r. enough, 59 Cal., 438. s Rex i'. Me Daniel. Poster, 131. Rex v. Fuller, Rms. & R.,408. People v. Gardiner, 25 N. Y. (Supp.), 1072. 230 CONSENT N 7 OT AFFECTED BY ITS MOTIVE. [8. 180. Similarly if certain property is Delivered to a person by a servant by the master's directions with a view to fix the guilt on him, its taking by that person cannot be larceny, 10 as the taking in such a case is with the master's consent, and there is something more in the giving than rendering facility to the commission of the offence. The acquittal in Reg. v. Laicrance ll proceeded on the supposition, that the deed had oeen given by the owner's clerk into the prisoner's hands, and the Recorder directed the jury that they should acquit the prisoner unless they were satisfied that the clerk did not deliver it in his hand, but that he might be found guilty " if the deed was laid by the clerk on the table and taken up by the prisoner." This distinction has not always been respect- ed however ; and in The Queen v. Middteton, 12 Bramwell, B., observed, that " it is impossible to say that there was a taking here sufficient to constitute larceny, because the money was picked up, but that if it had been put in the prisoner's hand there was not such a taking." In Williams v. State, the agent of the owner of a cotton plantation informed him that the accused would come that night to take some cotton, and the owner said " let him have it, and I will be there at the getting," and on taking up his position with armed friends he told the agent to bring the accused from the wood a short distance off where the accused then was. The accused came and had just moved with a basket of cotton the agent gave him, when halt was ctied, and throwing away the basket, he ran away. The court held that as the cotton was delivered by tho agent there was no theft, and Bleckley, J., said: "There was no trespass committed in the taking. There was no taking without the owner's consent. True, the consent was given for a purpose quite aside from any design to part with the property, but, if given at all, and the intended larceny was cut off as soon as the owner could, after delivery, cry halt, and fire off the guns, what taking was there which could, with any truth, be said to be without his consent?" In Dodge v. firitfain, u the Supreme Court of Tennessee said : *' Receiving ^oods, with the owner's consent, from his servant, is not larceny, it being of the essence of the olfence that the 10 Kempt?. State, 11 Humph., 320. n 4 Cox C. C., 438. State TJ. Chambers, 6 Ala., 855. 12 '.3 C. C. Eos., 56. Stater. Covinaton, 2 Bail. L.. 5GO. ln 55 Ga., 391. i* Meigs, 83. S. 109.] CONSENT MUST COME TO DOER'S KNOWLEDGE. 231 goods be taken against the will of the owner invlto dominu" In Dodd v. Hamilton* 3 a slave was sent with some money to a certain place where the owner of the money and others were lying- in wait, and the slave was approached by a third person who was seized by the owner, and the money found lying on the ground, without any evidence to show that such person intended to take it, the Court held that even if it had been found in his possession it would not be larceny, because the owner had consented to its passing into his possession. The decision in Reg, v. Williams, 16 appears to be rather against this view, as there a person was convicted of theft of some coin, on the ground that he had made propositions to a bar-tender to rob the master's till, and the matter being communicated to the master, he directed the servant to send for that person and carry out the design . That person came to the shop, and according to the agreement he had made, pretended to purchase drinks, and was given by way of an excess of change by the bar-tender, the coin which he took up as soon as out of the tender's hands, and a part of which was marked. 109. In the law of contracts, an expression of consent has operation from the moment it is co en cases it may of the doer of the act/ be withdrawn before it has come to the knowledge of the person for whom it is meant. The same doctrine is held to apply generally in the criminal law also. The mention in that law is everywhere of the existence or non-existence of consent ; and never of its communication to, or its knowledge by, the person acting on it. In India, the consent of the owner of the goods taken was assumed to be sufficient to negative the offence of theft, even though it was not known to the person taking them, and had been given merely to secure his conviction. 17 Eminent German jurists have agreed with that view. 18 Authority is not wanting, however, in favor of the opposite view also. Thus Bohlou and Jahrke point out that the very ground of the application of the doctrine Volenti non fit injuria to such cases is that der dolus Seitens der Thiiters ausgeschlossen wird ; d. h. durch die ihm bekannte Einicilliyung setzt er sich nicht in Wider- 13 Taylor's X. C., Term Rep., 31. 17 Tlie Empress v. Troylukho' \ath I 1 Car. & K,, 195. L R., IV. Cal., 366. Schutze Lelu-b ., Art. 33&35Anm. 8. II. Bind. Norm., 558. 232 COtfSENl 1 MUST COME TO DOER'S KNOWLEDGE. [S. 109. spruch zuder Subj'ectivitat des Verletzten. l9(l) Kessler maintains that there is no complete consent to a person doing anything before its communication to that person, that " die noch nicJit zur Kenntis* des Adressctten yelangts Einwitligu,ng&- vrklarung keine Wirkuwj haben darf; ja dass sie iiberhaupt noch keine Erkliirunq t sundern nur der erste Schritt zu e'mer sokhen ist." 21(m) To illustrate the rule, he gives the following example : A in his hunting grounds is often troubled by a dog of a neigh- bour B, which comes over there, the law not allowing a dog so doing to be shot. He- therefore sends a message to B, asking o o r ~ him to take more care of the dog, as otherwise A will shoot the dog at the next opportunity. B tells the messenger that he has nothing to do with the dog, and A may kill the same. The mes- senger scarcely leaves B, when B regrets the reply, and sends another messenger to withdraw it. The messenger of B over- takes A's messenger on the way, but in the meantime A has in his anger shot the dog. If the disposal of the dog in ques- tion were a civil transaction, the question whether the dog- had been shot before or after B made his statement to the first messenger would be of importance according to the doctrine concerning the concluding of contracts between absent parties. Da hiw aber civilrechtliche Gesichtspunkte tiictit in Betracht kommen, i*t A unter alien Umstiinden fur strafbar zu erklaren. Seine Straflosigkeit triirde dein Ztcecke des Gesetzes, den Eigenth'dmer dacor zu sickern, dass ohm ssinen Willen seine Sachen von Unbefiiyten zerstijrt werdeti, scknurstracks z Hinder - And so far is the doctrine carried by him. that he does not consider it enough that the consent should have come to the knowledge of the person acting on it, but must have so come with the will of the person consenting; die Emwilti- gungserld'drung muss nicht nur zu Ohren des T haters yekommdn, (I) Dolus is excluded on the part of the doer : that is, through the consent known to him, he does not place himself in opposition to the subjecti nty of the injured person. (in) T he declaration of will which has not yet reached the knowledge of the ^ersou addressee can have no effect : and that it is indeed not at all a declaration but only the first step to it. (/t) Here, however, the point of view of civil rights does not come into consideration, (ami) A is under all circumstanacs to be declared punishable. His immunity from punishment would run directly counter to the object of law, which is to secure for the owner, that without his will his things should not be destroyed by any one unauthorized . 111 Brcit. Tolen.. 21. | 21 Kes.s. Einw.. 106. 22 Kess. Einw.. 107. g. 110.] MERE BELIEF OF ABSENCE OF CONSENT. 233 sondern auch an ihn yerichtet gewesen sein. (0)23 And according to him, this follows from the character of consent as a Dispo- sitions actes, (p) and from the object of the penal law. Thus he adds : 2I Spricht jemand seine JEtnwilligimg aus< aber unter der Voraussetzung, dass der in Aussie fit genommene Thdter dies nicht erfahren werde, so liegt uberhaupt keine JEimcilligung, sondern nur das Reden, von einer solchen vor. Die etwa auf Grand ernes hinterbrnchten derartiyen Geredes vollfiihrte That bltibt strafbar. Hat freilich der Thdter im guten Glauben an eine fur ihn bsstimmte Einwilliyimyscrklarung gehanddt, so ist er selbstverstandlich straflos, aber nicht ivegen vorhandener Einwilligung, sondern wegen mangelnden dolus. (q} This view of Kessler does not appear to be correct however. Even Breithaupt here parts company from him, and in his work en Volenti nonfit injuria'" 6 says : Warum in dem Falle, wo der Thdter durch einen Dritten Kenntniss dawn erh'dlt, dass ein Anderer ernsttich sich mit der verletzung einverstanden erklart hat, bei Zufugung derselben der dolus weniger ausgesch- lossen sein soil, als in dem Fall, wo dem Thdter die EinwilliQung unmittelbar zugeht, erscheint uns nicht recht einleuchtend. ( } 110. In cases in which the absence of a person's consent Mere belief as to ab- to an act is the gist of an offence, mere sence of consent not ignorance by the offender of the consent equivalent to its ab- to tn at act will not be sufficient to make that act an offence. It is necessary that the act should really have been without the consent of the person against whom it was done, and the absence of whose consent formed the gist. This has generally been held in larceny cases, where the owner sometimes consents to a person taking away his property, with a view to the discovery of the (0) The declaratioi of consent must not only have come to the ears of the doer, but should also have been intended for him* (p) Act of disposal. (.j) If anybody declares his consent, but under the supposition, that it will not reach the doer in view, there will be no consent at nil, but only a talk about it. An act done on the strength cf a rumour of that sort cm-ied to the doer, remains punishable. If the doer has of course acted in the honest belref, than the declaration of consent wns intended for him, he shall naturally be free from punishment, but not on account of consent having been given, but because there would be no dolu* (criminal intent). (r) It does not appear c v eai to us why dolus should be less excluded in a case where the doer his received information from a third party that another has seriously declared himself to be agreeable '.o an injury, than in the case where consent is directly giveu to the doer. 9 Kegs, Einw., 107. I s * Kess. Einw., 107. P. 26. 30 234 MERE BELIEF OF ABSENCE OF CONSENT. [. 113. offender, and the proof of his guilt. There is no offence com- mitted in such cases on account of the taking, even though it is taken with a full belief that the owner is not aware of, and a consenting party to, the taking. The person taking may be morally as guilty as if the owner had not con sen ted , but a .necessary ingredient of legal guilt will be wanting, and no offence will have been committed in law. The weight of opinion in the Roman law also was in favour of that view. Pomponius, who professed to belong to the subjective school, indeed maintained that there was theft committed when the person removing the thing supposed that the proprietor did not consent to the removal, and he thus found theft in the opinion or belief of the person acting, even when there was no theft in reality. Gaius laid down, however, sed et si credat aliquis invito domino se rem contrectare domino autem volente id fiat, dicitur fur turn won fieri. Ulpian held the same, and Justinian also required for theft the actual absence of the proprietor's consent. In modern Italy, Francesco Carrara has also taken the same view, and says : E iniquo future dove rixidta die del delitto man- carono gli estremi, e la pena fondare sopra un sospefto o sopra la sola intenzione. z&(3} He further observes 27 : E tanto necessario al furto ildissenso dtl propriztario che Ulpinno alia (I. 46, s. 8, ff. de furtis) fa la ipotesidi alamo che abbia ruhato ad altri una cosa credendo che egli noti volesse mmtre infatto era (.ontentis- simo; e decide essere non furto. (i} In Williams v. State Bleckley, J., observed, that "if the property was delivered by the owner's direction, and with his consent, it can make no difference legally, although it does morally, that the accused did not know of such direction and consent. Suppose the owner, instead of acting by his agent, had ncted in person nnd delivered the cotton from his own hands, the defendant not knowing him to be the owner, but believing him to be another thief and a confederate with himself in the supposed larceny, would not an essential element of legal larceny be wanting ? " (*) It 18 unjust to punish where it results that tho ea-sentiils of the offente are wanting, and (equally ao) to bo.e the punishment on suspicion or mere intention. (t) so necessary is the dissent of the proprietor to theft, that Dlpian in treating of thsft give-, the case of one who had robbed another of a thing believing th*t he did not wish it, white in fact he was most contented, and decides that it is not theft. * Carr. Prog., Art. 2034 (n). | * Carr. Prog , Art. 55 Ga., 391. S. 110.] BELIEF OF ABSENCE OF CONSENT IN INDIA. 235 Similarly it has been held, that if a man be robbed by his own consent, even though the robbers do not know of his consent, there is no crime. This is supported clearly by the decision in Rex v. Me Daniel in which the consent was not known to the persons enticed to a certain place on the highway to rob one Solomon, yet they were acquitted on the ground that they took his mimey with his consent. This decision was followed in United States v. Whittle**, 30 in which Judge Dillon observed: " There is a class of cases in respect of larceny and robbery, in which it is held that, where one person procures, or originally induces the commission of the act by another, the person who does the act cannot be convicted of these particular crimes, although he supposed he was taking the property without the consent or against the will of the owner." 111. The same view is taken generally in British India Belief of absence of also - For kidnapping and rape, it is consent how for deemed necessary that there should be no con* equivalent to consent iu sent. For wrongful restraint and com- T 1* pulsory labour it is quite as necessary that the person restrained or compelled should not be agreed to it. Nor can there be adultery or the enticing away of a married woman, if the husband is a consenting party to the intercourse or enticing. For criminal force also the absence of consent has been made a statutory essential, though for assault it may not be so. Any gesture or preparation may constitute assault, provided " it will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person," and the apprehension will depend not so much on the absence of consent, as on a belief of its absence. Under the Indian Penal Code, it is not necessary, however, to constitute theft that the article taken should be moved without the consent of any person, but that it should be moved with an intent to take it out of the possession of any person without ihat person's consent. The question in India, therefore, in regard to theft is not of the absence of consent, but of the existence of an intention to take without consent, for which, of course, a belief of the absence of that intention will be sufficient. This view is borne out not only by the language of the definition; 1 Font., 121. | so 5 D:!'., 85. 236 BELIEF OF ABSENCE OF CONSENT IN INDIA. [ g. HI. but also by illustrations (m) and (n), in both of which the criminal act of taking a thing is said not to be an offence, if the person taking it believed that he had implied consent to its taking. These illustrations appear beyond doubt, to refer to the cases in which there is no theft, because there is a belief as to the existence of consent ; the real existence of consent not being referred to, and therefore treated apparently as immaterial. In the same way, in illustration (0), a person taking valuable property cf his mis- tress' husband from her, believing her to have no authority from the husband to give it, is said to commit theft, without any reference to the real fact of her having authority or not. In all the three illustrations, the offence of the person taking the property is made to depend exclusively on the belief of that person as to the owner's consent, and not on the existence or non-existence of the consent. And this view is in accordance also with the direction in which all criminal law is advancing, the direction of replacing the objective elements of an offence with the subjective, and substituting the feelings and ideas of the doer of the act for the conditions of the things to, and the circumstances in, which the act is done. Even in countries in which the com- mission of theft depends on the absence of consent, and not merely on the absence of a belief in its existence, a bond fide belief in its existence will also negative the offence. Binding, who on principle declares it to be indifferent in case of offences relating to property whether the consent is declared before or after, says that bei jeder erwarteten Einwilligung der Vorsatz und somit auch die Rechts t widrigkeit aufgehoben wird. n ( " } (u) In every case of expected consent, the wrongful intention and accordingly the Illegality is removed. II Bind. Norm., 539. 8. 112.] CONSENT CAUSED BY FEAR OR MISCONCEPTION. 37 CHAPTER VII. OBJECTIVE DISQUALIFICATIONS OP CONSENT. 112. It has been stated above in S. 14 that there can be Consent caused by no consent to an act which is not known fear or misconception of to the person consenting, and in S. 25 fact is not consent in that consent will not be deemed to be sufficient for the purpose of tho law of contracts, if it is not free, but has been induced by coercion, undue influence, fraud, misrepresentation or mistake. The principle underlying that statement is of a general application, and may be said broadly to apply in the case of non-contract law also. In S. 67 a reference has been made to its effect in the law of torts. Nor is it less applicable in the law of crimes. There are similar provisions recognized as affecting the adequa- cy of consent in the criminal law. The exact character of these provisions is different in different countries ; to some extent, because increased experience and the more humane ideas which are coming into recognition every day are leading gradually to fresh developments in them. Starting from the original Roman and Common law notion that the consent of a person to an act is a complete justification of it as against that person, practical requirements of justice have introduced one exception after an- other, so that the notion is now restricted to rather narrow limits. It has come to be generally considered as settled that consent obtained by force (including fear), or by a mistake (including fraud) as to the nature of the act consented to, is altogether inoperative, while the law is not quite settled as to the effect on it of undue influence or mistake as to matters incidentally connected with the act. Speaking of consent as avoiding the criminality of acts causing bodily injuries, Stephen in his Digest of Criminal Law 1 observes that effect belongs only to a consent freely given, and that consent is said to be given freely when it is not procured by force, fraud, or threats of whatever nature. 113. This principle as to the effect on consent of fear or misconception is recognized to its fullest General recognition extent in the Indian p enal C()d ^^ of the principle in the , -,, . , Indian Penal Code. broadly provides, that "a consent is not such as is intended by any section of this Code, if the consent is given by a person under fear of injury, or Art, 324. 238 CONSENT CAUSED BY FEAR OR MISCONCEPTION. [g. 113. under a misconception of fact." It has sometimes been attempted to narrow the application of this principle by restricting it to offences, of which the absence of consent has been expressly made an essential constituent, and by excluding from its operation offences, certain constituents of which can exist only in the absence of consent. Reference has been made in S. 7 to some such offences, as having the absence of consent for their essential constituent. Thus there can be no wrongful restraint or confinement of a person who consents and is willing to stay at the place where he is. Nor can an act be an assault or insult to a person, if it is consented to by that person. It is contended that in such cases, actual consent will be sufficient to avoid the criminality of the acts constituting those offences, and that the provision of the Indian Penal Code negativing the consent caused by fear or misconception will have no effect in regard to such offences, as in their case consent cannot be deemed to be intended by any section of the Code. Mr. Mayne thus observes, 3 that " many children under the age of twelve are perfectly aware of the nature of such acts, and willing to submit to them," and ' ; in such a case, although this willingness could not supply the element of consent, it would negative the idea that such an act would cause either tear or annoyance." So also, aft r observing that an act of indecency committed by one male with another, unless amounting either to attempting or abetting an offence under S. 377 of the Code, if consented to \>y that other with full knowledge, will not be an offence, he says 3 "and the infancy of the consenting party would make no difference." He further adds that consent also negatives the possibility of the act intended being a crime under S. 354 of the Code. There appear to be no sufficient grounds, however, in support of this view. Nor is there any reason for so radical a difference in the treatment of offences, which are all agreed so far that the absence of consent is an essential constituent of theirs, and which differ only in the circumstance that in some of them, that constituent is recognized expressly by statute, while in others it has not been considered necessary to do so, as its force rests in the nature of things. The controversies in regard to the effect of a minor's consent on assault against her could not have escaped the attention of those, who took part at different times in the framing of the Code ; and the words Mayne Cr. L., 683. | a Mayne Cr. L., 583. 8, 112.] KNOWLEDGE OF VITIATING CAUSE OF CONSENT. 239 " intended by any section " appear to have been used delibe- rately instead of *' mentioned in any section," as though consent is not mentioned in the definitions of wrongful restraint and assault, it cannot be said not to have been intended by them. Mr. Collett also, in his Comments on the Indian Penal Code, dissents from Mr. Mayne's view on the ground, that " an indecent assault without consent must necessarily cause injury, fear, or annoyance to its object, and where that object is legally incom- petent to consent, what has to be alone regarded is the wrongful intent or mens rea of the accused." It may be urged that there is no legal incompetency to consent on the part of any one, though the consent by certain persons and in certain circumstances is not considered adequate in certain branches of law. This very inadequacy, however, constitutes an incompetency ; and the provision as to the effect on consent of fear or misconception, and in fact even of the subjective disqualifications of consent referred to in the next chapter, may be taken to be most general, and without any reserve or limitation. 114. The general proposition in the Indian Penal Code HS to the effect of fear or misconception on Knowledge by person consent, is qualified by the important acting on consent of its proviso thafc it '. W H1 apply only if the having been uiven by i ,1 , \ J J i fear or misconception. person doing the act knows, or has reason to believe that the consent waa given in consequence of such fear or misconception." This qualificative proviso is a recent development of the general principles relating to consent. The Common law did not recognize it in any shape. It was a general rule of that law that a party to a contract was not bound to see that the other party was not under any mistake ; and that so long as hedid nothing to cause the mistake, he was able to enforce the contract as entirely valid. For example, in Smith v. Hughes,* Blackburn, J., observed that he agreed "that even if the vendor was aware that the purchaser thought that the article possessed that quality, and would not have entered into the contract unless he had so thought, still the purchaser is bound, unless the vendor was guilty of some fraud or deceit upon him, and that a mere abstinence from disabusing the purchaser of that impression is not fraud or deceit ; for, whatever may . _ _____ __ % * Coll. Com. P. C v 263. \ 6 Q. B., 697. 240 KNOWLEDGE OF VITIATING CAUSE OF CONSENT. [g. 114. be the case in a court of morals, there is no legal obligation on the vendor to inform the purchaser that he is under a mistake, not induced by the act of the vendor." Courts of equity, however, have for some time recognized the importance of the vendor's knowledge that the purchase is under a mistake, even though the mistake has not been induced by any act of his. Thus Ansou in his work on Con- tracts 6 says, that "a series of equity cases illustrate the rule that when one man knows that another understands his promise in a different sense to that in which he makes it, the transaction will not be allowed to stand." Even if the courts of Common law recognized the contract in such a cae, they would only award damages for non -performance ; the courts of equity would, however, always decline to compel specific per- formance of them. Thus in Webster v. Cecil? the latter refused an offer of the former of 2,000 for certain plots of land, and intending to offer them for 2,100, by a clerical error offered them for 1,200. Webster accepted by return of post, and on Cecil attempting to correct the error sued for specific performance. This was refused, however, as Webster had merely snapped at an offer which he must have perfectly well known to be made by mistake. The decision in Garrard v. Frankel* and in Harris v. Pepperell, 9 proceeded on the same principle, on the principle " that the Court will not hold the plaintiff bound by the defendant's acceptance of an offer which did not express the plaintiff's real intention, and which the defendant could not, in the circumstances, have reasonably supposed to express it. " 10 On general principles, it is clear that a person who gives consent to the doing of an act has no right to complain if that act is done, even though injury accrue to him from its doing. There is no reason, at least, why a person, who, relying on the consent so given, does an act, should suffer simply because it turns out that the consent was given under a fear of injury or misconception of fact. In such a case, even if it were a question merely of a civil wrong, of the two persons, both innocent, the one who gave the consent would suffer, rather than the person who acted in reliance on that consent. It may well be different, however, if the vice or rather the defective 6 P. 139. I s 30 Beav., 446. 30 Beav., 62. 6 Eq., 1. 10 Poll. Cont., 460. S. 115.] RECOGNITION OF THE PROVISION IN CRIMINAL LAW. charactc r of the consent is knowingly caused by or even known to the person, who, knowing of the vice or defect, acts on that consent. A person who knowing that the consent is defective or bad, acts on it cannot claim to have acted innocently, cannot claim the exemption that he would have had if he had acted without such knowledge. So far as he is concerned, consent may well be deemed not to have existed, and his act dealt with as if there were no consent. 115. Nor is this provision, in its application to the criminal Recoo-nitioQ of the ^ aw ) peculiar to the Indian Penal Code. prevision in English The importance of a knowledge of the criminal law. consent having, in any case, been caused by fear cr mistake, is recognized in the English criminal law also. Thus, in Koscoe's work on the Law of Evidence in criminal cases, 11 it is said : "that the true rule must be, that where the man is led from the conduct of the woman to believe that he is not committing a crime known to the law, the act of connection cannot under such circumstances amount to rape. In order to constitute rape there must, it would appear, be an intent to have connection with the woman notwithstanding her resistance." In the case of Beg. v. Urn/, tried at LincohrSpring Assizes, 1873, the above passage was approved of by Denman, J. In Reg. v. Thurborn Parke, B., observed that the guilt of the accused must depend upon the circumstances as they appeared to him. So also in The Queen v. Clarence Field, J., observed : "The actual circumstances were that the prisoner, knowing he had a foul and infectious disease upon him, and that the infec- tion of his wife would be the natural and reasonable consequence of intercourse, solicited intercourse. He also knew that his wife consented to it in ignorance of his condition. Under these circumstances, I think that her consent to the intercourse in fact was given upon the implied condition that, to the knowledge of the prisoner, the nature of the intercourse was that to which she had bound herself to consent and had been accustomed to consent, i.e., a natural and healthy connection. But the intercourse which the prisoner imposed upon his wife was of a different nature one which, in all probability, would commu- nicate to her a foul disease, and to which the jury have found 11 P. 855. I 12 1 Den. C. C.. 387. is 22 Q. B. D., 53. 31 242 COERCION AND FRAUD WILL NOT AVOID CONSENT. [g. 116 that she would not have consented had she known the state of his health. It seems to me, therefore, to follow that, the mere consent of the prisoner's wife to an act, innocent in itself, and in no way injurious to her, was no consent at all to what the prisoner did, and moreover that he obtained such consent as she gave by wilfully suppressing the fact that he was suffering from disease ..... The result, therefore, at which I have arrived is, that there Avas no consent m fact by the prisoner's wife to the prisoner's act of intercourse, because although he knew, yet his wife did not know, and he wilfully left her in ignorance as to the real nature and character of that act." 116. Apart from this qualification as to knowledge, the rule prescribed in the Indian Penal Code is of Coercion and fraud a mosfc com p re hensive character. Under will not necessarily avoid ., 1,1 i consent. ^ s general words, the consent being vicious when it is given under fear or misconception of fact, it will be immaterial what is the cause of the fear or misconception, and if it has been caused by any person, whether the person doing the act in reliance on it or any other is the cause of it. Nor will it be material in either case, whether the fear or misconception has been caused know- ingly or wilfully, maliciously or fraudulently, with intent to injure any person, or merely to please oneself. Coercion and fraud will thus often prevent consent induced by them from being consent for the purposes of the Code. This is not absolutely necessary, however, because even a person employing coercion, or practising fraud on another, and thereby inducing that other's consent., may not k now that that other has been frightened or misled, nd in default of such knowledge the consent induced by and on account of the said fright and misleading, will not be vitiated, or in any \vay rendered inadequate. 117. Fear as a cause of -the vitiation of consent is not really different from duress and coercion, b F dure 8 r y ^ CaUSC to which reference bas already been made as affecting freedom of consent in the law of contracts. Consent is generally said to be caused by dures>, but really that is only a remote cause of consent, being an immediate cause of the fear which it creates, and which in its turn causes the consent. In some cases duress and coercion may cause a conssiit directly and without creating fear, but the consent in that case will be only apparent or physical, a S 117. PEAR MAV BE CAUSED BY DURESS. 243 mere external indication or declaration similar to that of consent, produced by physical causes quite independent of all real will. The framer.s of the Indian Penal Code have, in speaking of consent caused by fear,' only used a correct expression to designate the consent, held to be not free in the law of contracts, as resulting from duress. The present signification of the term duress in the law of contracts is explained above in S. 25, and is much the same in the law of crimes. Here also it is not restricted to actual violence but includes menaces and threats ; and a woman's consent caused by them to a man having intercourse with her or taking her property will not prevent the intercourse and the taking from being rape and theft respectively. Thus in Rey. v. Day?* Coleridge, J., said that if the submission of the girl (aged ten years) to the intercourse with her was not voluntary, but the result of fear, the intercourse would be rape. In fact consent to sexual intercourse induced by threats has often been held to be equivalent even to the force required to render the intercourse a rape, 15 and in Don Moran v. People, Christiancy, C. J., in delivering the opinion of the Court, pointed out that " the requirement of force would be satisfied by any sexual intercourse to which the woman may have been induced to yield, only through the constraint produced by the fear of. great bodily harm, or danger to life or limb, which the prisoner has, for the purpose of overcoming her will, caused her to apprehend, as the conse- quence of her refusal, and without which she would not have yielded." ' We think," went on the learned Judge, " it is well and properly settled that the terms, ' by force,' do not necessarily imply the positive exertion of actual physical force in the act of compelling submission of the female to the sexual connection ; but that force or violence threatened as the result of non-compliance, and for the purpose of preventing resistance, or extorting consent, if it be such as to create a real apprehen- sion of dangerous consequences, or great bodily harm, or such as in any manner to overpower the mind of the victim so that she dare not resist, is, and upon all sound principles must be, regarded, for this purpose, as in all respects equivalent to force actually exerted for the same purpose 17 ." i* 9 C. & P., 7:,2. 10 S. r. Reid, 39 Jkfinn., 277. 8. r. Cunningham, 100 Mo., 38?. i 8 25 Mich., 356. 17 Wright r. State, 4 Humph., 194. Pleasant ?. State, ]3 Ark., 360. Strang r. People, 24 Mich., 1. 244 FEAR MAY BE CAUSED BY DURESS. [s. 117. The same was held in State v. Ruth in which the Supreme Court of Kansas said : " The court declared that the force necessary to constitute the crime of rape might be mental or physical force, or both combined, and that if a person by threats, or by placing a female in fear of death, violence or bodily harm, induces her to submit to his desires, and while under this influence ravishes her, this is as much a forcible ravishing as if a person, by reason of his superior strength, would hold a woman and forcibly ravish her. We understand the court to simply mean that the act must be committed, either (1) by physical force against the will of the female, or (2) with her acquiescence procured by threats or violence. On the contrary, the court was asked to declare that the offence charged could not be committed unless there was the utmost reluctance and the utmost resistance on the part of the female. The distinction between the two theories is broad and well-defined. Under the former, acquiescence, induced by mental terror and fear of violence, supersedes the necessity of physical resistance. Under the latter, there must be actual physical resistance. - The female when assailed must persist, though she knows resistance will be vain ; she must fight, though she may believe this course will bring upon her other and perhaps greater violence ; she must cry aloud, though she knows no relief is near ; she must arouse her sleeping infant sisters to be witnesses to the outrage, though she knows they can render her no aid. Under the former, the force may be either actual or constructive, while under the latter it must be actual. The weight of reason and authority is with the view of the court below." 1 * The same view is taken by French jurists. Thus, R. Garraml in his treatise on French Penal Law, says, 20 Que cette forme de contrainte, qui result e de menaces d,3 nature a inspirer a la victime de Vattentat la erainte serieuse et immediate d'exposer sa personne ou celle de ses prochis a un mat considerable et presmt, pitisse et doiv3 etrz atsimiles t en legislation, a la contrainte physique elle-meme, c'est ce que nous admettrions volontisrs. (a) Doubts were sometimes felt there as to the ^ () We willingly admit that this form of constraint, by menaces of such a nature aa to inspire tlie yictim of the assault with a serious and immediate fear of exposing her person or the parson 583. | 10 Turner r. People, 33 Mich., S63. a IV. 464. S. 118 J FEAR RESULT OF ONE'S DEPENDENT POSITION. correctness of placing moral violence on the same level with the material, and of admitting that a female consenting to surrender herself to a man, under the pressure even of the gravest menaces, can claim to have been violated by him, as there was no special provision in that behalf in the Code Penal. The Code, however, did not contain any definition of rape, and it appeared also difficult to believe that it was intended to leave without repression the carnal inter- course obtained by means of grave menaces but without the employment of physical violence. R. Garraud expresses it as his opinion as well as the general opinion of jurists and judges, that it is just that among the circumstances which take away her liberty, the employment of moral violence like that of physical violence, is provided for and punished by the French Law. In speaking oi' abduction, he further observes, 21 that menaces which constitute a moral constraint are a form of private violence, and there is no doubt that their use ought to be assimilated to that of physical violence itself, if they are such as to weigh over the will of a minor with a force which he has not been able to resist. 118. Nor are even direct menaces or threats necessary. Fear so long as it is of an injury may Fear may be result of } beeR d } fa . one s dependent position. , . J .,.'.. dition or things. It will vitiate consent even when it is a result of one's own dependent or subordinate position, or of the power and influence of another over oneself. Thus it has been held that a woman's consent to the intercourse, when induced by the influence of a person in whose power she feels herself, is not a defence against a charge of rape. 22 So also the non-resistance by a young pupil to an act of outrage on her modesty by her schoolmaster on her person will not exculpate him on a charge of indecent assault. 23 In Peg v. Jones, 2 * a father was indicted for rape of his daughter, and Channel, B., held that as he had established a reiun of terror in the family, in consequence whereof the daughter remained passive, and did not resist him, he was guilty. In Bailey v. Com., 2 *" it \vas a stepfather having 21 P. 648. 22 Reg. r. Woodhursf, 12 Cox C. C., 443. Pleasant r. State, 13 Ark., 360. Wright ?. State, 4 Humph., 194. 83 Eeg v. Rosinski, 1 Mood. C, C., 19. Rex. r. Nichol, Rnss. & R., 130. Reg. r. McCavaran, 6 Cox C. C., 04. a * 4 L. T. (N. S.), 154. 95 82.. Va., 107. To same effect, Sharp ?. State, 15 Te*. App., 171. 246 CHARACTER OF INJURY CAUSING FEAR. [S 119. authority overLis daughter, who was charged with the offence of rape on her, and Lacy, J., in delivering the opinion of the Supreme Court of Virginia, observed that "though a man biy no hands on a woman, yet it by an array of physical force he so overpowers her mind that she dares not resist, he is guilty of rape by having the unlawful intercourse." 119. There has been some conflict of opinion even as to the character of the injury, a fear of which Character of the in- m j j fc conseT]t> In th cage f &M jury causing fear. n , . . v. Kutn, it was held that tear would negative consent only when the injury causing the fear should be so serious, that by fear and terror, the power of volition and physical resistance is wholly lost. Dr. Wharton says, 27 " where the woman is insensible through fright, or where she ceases resistance under fear of death or other great harm (such fear being gauged by her own capacity), the con- summated act is rape. 23 " The New York Penal Code provides that threats to prevent resistance to the intercourse will make the intercourse rape, only when they are of immediate and great bodily harm, which she has reasonable cause to belif.ve will be inflicted upon her. 29 The California Penal Code enacts the same, but the immediate and great bodily harm there must be such as is '' accompanied by apparent power of execution. " 30 The language used in some of the cases is not distinct, but there appears to have been entertained a notion that to vitiate consent, a fear of ordinary violence will not be sufficient. Thus in Me Quirk v. Stats,* 1 Somerville, J., in delivering the opinion of the Supreme Court of Alabama said : <{ An acquiescence obtained by duress, or fear of personal violence, will avail nothing, the law regarding such submission as no consent at all. If the mind of the woman is overpowered by a display of physical force, through threats, expressed, or implied, or otherwise, or she ceases resistance through fear of great harm, the consumma- tion of unlawful intercourse by the man would be rape." in Croghan v. State, 9 ' Cole J., observed, that " if the circumstances show that this consent w r as obtained by the use of force, and 8 21 Kans.,583. I People r. Fly mi, 06 Mich., 270. 7 I Whar. Cr. L., 518. King?;. Com., 20 S. W. K. (Ky.,)224. 28 Sharp r. State, 15 Te*. App., 171. I 29 S. 278. State v. Fernald, 55 N." W. K., so S. 261. (Iowa), 534. si 34 Ala , 435. 22 Wii., 444. S. 120. j CHARACTER OF HARM CAUSING FEAR. the woman's will was overcome by fear of personal injury, then the crime becomes one of higher degree." Intiailey v. Com., 33 Lacy, J., in delivering the opinion of the Court, observed that *' a consent induced by fear of bodily harm or personal violence is no consent," In some cases it has been directly held that threats of mere prosecution or of loss of reputation will not nullify the con- sent. 3 * There appears to be no case, however, in which fear of injury to property has been held not sufficient to vitiate consent in the criminal law, though, considering 1 the nature of things, this may well have been so. Mr. Starling, in his work on the Criminal law of India, observes that ' Although it is not so stated, it is surmised that there must be fear of injury to the person, and not to property ; for the consent to be given is apparently part of a contract. 25 ' This statement is supported merely by a reference to the effect of duress of goods on consent in the early English law of contracts, which has been explained above in S. 29. In the Indian Penal Code, the term injury is, however, defined to denote any harm whatever illegally caused to any person, in body, mind, reputation or property ; and there appears to be no sufficient reason for any limitation of the term. Fear of illegal loss of honor or property may therefore evidently be sufficient to make consent inoperative for the purposes of the Code. 120. The injury, a fear of which will nullify consent, must Fear must be of some however consist of some harm other than harm other than tliafc that contemplated to result from the act, contemplated from the the consent to which is in question, act consented to. -^ Starling thus says: Fear must be " of an injury other than that which it is supposed will be the result if a proposed course of treatment is adopted, an injury other than that which may be the natural result of the state tlse patient is in. It must, in fact, be the consequence of a threat of injury to be done, external to and unconnected with the injury which may be suffered." 36 In the United States, this has been held directly in Strang v. People, 37 in which the threat was that if she would refuse, he s* 82 Va., 107. a* Perkins r. State, (15 Ind., 317. Haley r. State, 49 Ark., U7. 35 P. 9S. 36 Rtarl. Cr. L., 08, s 24 Mich., 1. MISCONCEPTION OF FACT IN INDIAN CRIMINAL LAW. [s. 121. would take her to a place whence she could never iret back ; and this decision was approved of in Don Moran v. People. 121. The provision as to the vitiating effect on consent of a miconception of fact, laid down in the Scope of misconcep- i n( iian p ena l Code, goes much beyond tion of fact in Indian ,, i xi i r criminal law. that rec ognized in the law ot contracts. The language of the provision is most comprehensive, and there are no restrictions in the Code as to the nature of the misconception or of the fact to which it should relate, such as are expressly laid down in the Indian Contract Act, with reference to the effect of mistake on consent in the law of contracts. No distinction is made even between a unilateral or bilateral misconception, nor between a mistake of the person giving the consent himself, and between one induced by the party who acts on the consent, or by a third person. Mr. Nelson, in his commentary on the Indian Penal Code, referring to the expression u misconception of fact, " observer that " it means a misconception consequent upon a wilful misrepresentation made to the consenting party." 39 ISuch a misrepresentation may indeed lead to a misconception, but there appears to be no sufficient reason for restricting the misconception to that consequent upon a wilful misrepresen- tation, as there may certainly be a misconception without even a word being uttered to the consenting party by any one. The question of the construction of the expression appears to have arisen only in the case of Queen v. Punni Fattawa, 40 in which the consent to be bitten by a snake of a certain person, had been given under the belief that that person could heal a snake-bite wound or ward off its effects ; and it was held to be given under a misconception of fact, Jackson, J., even observing that the consent was not such as could satisfy the require- ments of Exception 5 of s, 300 of the Indian Penal Code. " The consent of the coolies to be bitten," said the learned Judge, "is in my opinion, under the laAV, no consent, because it was founded on a misconception of facts, and the prisoners knew that the consent was given in consequence of such misconception. The coolies believed that the jugglers had 3S 25 Mich., 356. | so P. ]01. * III. B. L. II. A. Cr., 25. S. 122.] EFFECT OP MISTAKE ON CONSENT IN ENOLISH LAW. 249 power by charms to cure snake-bites. The jugglers pretended that they had such power, when they had no such power, and the consent to be bitten was given by the coolies only under the misconception that the jugglers possessed some such power. The jugglers then knew that the consent of the coolies was given under a misconception of facts as to their power over snakes." This decision favours a broad construction of the expression. It is difficult, however, to think that the provision as to misconception can be taken in its literal broadness. Thus construed, the misconception of a person giving a thing to some one as to the quality or value of that thing or as to the means or position of that one, shall make the latter guilty of theft by negativing the consent of the giver. So also, a misconception as to the health or habits of a man with whom an adult widow consents, on account of that misconception, to have sexual intercourse or to go anywhere, shall make him guilty of rape or abduction. It may even be argued that if the provision were intended to be understood so broadly, there could be no occasion for retaining in the definition of rape, the fourth clause relating to the intercourse with a woman by personation of her husband. The provision in the Indian law concerning misconception should evidently be so construed as not to involve any such consequences ; and in restricting its construction and scope, help may evidently be taken with the greatest advantage from the general practice of the English courts. 122. In the English criminal law, the question of the effect of mistake on consent has arisen Effect of mistake on or enera |iy i n cases of larceny, rape, and consent in English en- i, T- -j 11 i- ^ niiual law. assault. It is considerably complicated, however, by such constituents of those offences, as are not required in the Indian law, or as have no bearing on consent. Thus, larceny has reference mainly to the property in things, as theft has to their possession. Besides the gist of larceny is the taking of another person's property, and it is quite as necessary for it, that the taking should be animo furandi as invito domini, and that the animus must exist at the time of the taking, the acquittal often proceeding on the ground of its non-existence at that time. So also in cases of rape, the requirement of the absence of consent is only a recent substitution for that of the existence of force, and most of the decisions turn on the ground of the 32 250 EFFECT OF MISTAKE ON CONSENT IN LARCEKY. [. 123. earlier requirement. Nor is the absence of consent a sine qud non of the offence even at present, as sexual intercourse may often be rape, even when it is had with the consent of the woman. The conception of assault also in England is essentially different from that in India, and it is often maintained that the absence of consent is not an essential element of assault in the English law. These circumstances are to be carefully borne in mind in drawing any inference from the English cases as to the effect of mistake on consent. 123. To speak more particularly of larceny cases, in which the question has arisen most frequently, Effect of mistake on str j c tl y speaking, there is hardly room, consent in larceny , J . , , . J ,, ca&eg when a person gives a thing to another, for a talk of his consent to that other taking that thing. In French law, the question of consent does not directly arise in such cases, it being held that there is no theft in them, as the first essential constituent of that offence is soustraction or Contrectatio, the taking away of the thing the object of the offence, is wanting. It is a general rule of French law, that there can be no soustraction, of a thing which is given; as A. Blanche states 41 in general words, that for soustraire it is necessary la prendre, I'enlever, la rarir from its lawful possession ; and when the thing has been i-^miss (delivered), without necessity by him or by any other person to him who appropriates the same, it is not apprehen- dee, it is not soustraite, it does not become the object of a theft. The Court of Cassation A has repeatedly laid down that there is no soustraction, in the precise and legal sense of that word, in cases where the thing a ete remise volontairement par le proprietaire alapersonne inculpee.'-^ ISTor is it considered ma- terial that the thing is delivered only for a short time or even for a momentary purpose, and to be returned after that time (4) Thus the Court of Cassation in acquitting Bordet ** who had received and re- tained a bill of one hundred francs from a workman who had seen it fall from the pocket of a coat sold and delivered, said that the apprehention of the object stolen not having taking place on the part of the person who later on appropriated it, the character of theft disappeared. * 3 (a) Has been voluntarily delivered by the proprietor to the offender. *i V. Blanch. Etad. Prat 62fi. | * On llth July 18G2 *a V. Blanch. Etud. Prut. 028. 8. 123.] EFFECT OF MISTAKE ON CONSENT IN LARCENY. 251 or purpose to the person having ifc. This was the case in the prosecution against Prost to whom Dotte had given a twenty franc piece to see at his convenience, and who finally refused to return it alleging that it was not Dotte's. He was convicted on the ground that Dotte n'a conssnti a ss desister de la posses- sion de la piece d'or que Prost avait desire examiner, qu'il ne la lui a pas abandonnee, meme temporairtment, qu'il s'est borne a une simple remise sous ses yeux et sous la condition implicit e d'une restitution immediate, (c) The conviction was quashed, however, on the ground that that would give to the word soustraction a sense different from its legal one, and identify it virtually with retention which differed essen- tially from it, the Court of Cassation laying down that a remise volontaire de la chose, quelle que soit sa duree, exclut necrssairement le fait dela soustraction i * 4 (d') and that the act imputed to the otfeuder in that case was more than a retention. The decision is different, however, when the delivery is not voluntary ; but necessary, as for example, when a debtor on pretext of offering payment of the money due from him, asks for a production of the titre constitutif of his obligation, or for the receipt of the amount he is going to pay, and afterwards fraudulently refuses to restore that as well as to pay. The Court of Cassation in Paris has in such cases held that though there is no soustraction and therefore theft in the sense of Art. 37D, when the thing taken away has been delivered, even momen- tarily but voluntarily, by the proprietor, to liim who has taken it to appropriate it to himself ; it is otherwise when the delivery is necessary and forced, ielle que la communication au debiteur du billet ou de la quittance qu'il vient d 1 acquitter, in which case the possessor of the title does not really dispossess himself of it, but only places it before the eyes of the debtor; as such delivery is often indispensable ro the making of the payment, and there does riot result from it MIIV fault which may be imputed to the possessor ; and that, therefore, the debtor who possesses himself of the billet or of the receipt, and \vho takes it away, commits a true soustraction.^ The correct view appears to be that there is DO delivery in (c) had consented to abandon his possession of the piece of gold only as Prrst had desired to examine it, that he had abandoned it only temporarily, that he had limited it only to a simple delivery under his eyes, and under the implicit condition of an immediate restitution. (d) Voluntary delivery of the thing, whatever its duration may be, necessarily excludes the act of soustraction. ** V. Blanch. Etu.l. Prat. G27. | * V. fiar. Pr. Pen., 90 252 EFFECT OF MISTAKE ON CONSENT IN LARCENY. [3. 123 such a case, but only a production or exhibition of the docu- ments ; and the debtor is no more in possession of them than a traveller at an hotel is in possession of the spoons and forks he may be using at the table d'hote. The usual shape the question has assumed is whether the giving of a thing to a person involves a consent to his taking it, when the giver is under a mistake as to the identity of the person to whom it is given or as to the nature of the thing given itself. The correct answer to this must, of course, be in the negative. The analogy of the law of con- tracts ought to be deemed applicable in such a case, and in fact the question of the transfer of the thing thus given is one to be determined mainly by that law. If I give a thing to A, mistaking him for B, even apart from law, and as a matter of mere common sense, I cannot be deemed to consent to B taking that thing. So also if 1 give to A one thing, mistaking it for another, common sense dictates that I cannot be held to consent to A taking the thing given. There can be no con- sent in such cases, though on account of my mistake I may sometimes be estopped from alleging my non-consent. It has sometimes been held that in such a case, even if the property is received with a knowledge of the mistake, there is no larceny. Thus the cases of Rex v. Adams* 6 and Rex v. Atkinson* 7 appear to have been decided on the ground that an intention to pass the property, though in- operative, and known by the prisoner to be inoperative, is enough to prevent the crime from being larceny. In Rig. v. Middleton* also, it was contended that if the owner having power to dispose of the property intended to part with it, that would prevent the crime from being larceny, though the intention was inoperative and no property passed. Cleasby, J., actually took that view, and in his dissentient judgment said : 49 " The cases show, no doubt, beyond question, that where the transaction is of such a nature that the property in the chattel actually passes (though subject to be resumed by reason of fraud or trick), there is no taking, and therefore no larceny. But they do not show the con- verse, viz., that when the property does not pass there is larceny. On the contrary, they appear to me to show that where there is an intention to part with the property along *' ! II. Rnss. Crimes, 2CC. I 4 " 2 0. C. Res., 38. *7 2 East P. C . 073. ' '' 2 C. C. Res . CM. S. 124.] EFFECT OF DELIVERY BY AN AGENT. 53 with the possession, though the fraud is of such a nature as to prevent that intention from operating, there is still no larceny. This seems so clearly to follow from the cardinal rule that there must be a taking against the will of the owner, that the cases rather assume that the intention to transfer the property governs the case, than expressly decide it. For how can there be a taking against the will of the owner, where the owner hands over the possession, intending by doing so to part with the entire property." The majority of the judges dissented, however, from that view, and observed that they "ought not to feel bound by two cases (cited above) which, as far as we can perceive, stand alone, and seem contrary both to principle and justice." They considered that in almost all the cases on the subject, the property had actually passed, or at least, the court thought it had passed ; and said : "It has been often decided that where the true owner did part with the physical possession of a chattel to the prisoner, and therefore in one sense the taking of the possession was not against his will, yet if it was proved that the prisoner from the beginning had the intent to steal, and with that intent obtained the possession, it is sufficient taking." 124. The conviction in some of these cases proceeded on the ground that the giving was by an an a!eut * 7 *&?** wh had n &*& to give the thing to the person to whom it was given, and whose giving therefore could of course not imply a consent on behalf of the owner to the taking of the thing by that person. Thus in Rex. v. Longstreeth, i0 Longstreeth was convicted of larceny for taking delivery of the chests of tea consigned to Creighton from a porter in the employ of the carriers, who had authority to deliver them to Creighton alone, and to whom Longstreeth pretended to be Creighton. As a natural result of this principle, wherever the agent's authority on account of the nature of the agency or otherwise was held to be general and co-equal with the owner's, as in the case of Reg. v. JacJcson, 1 a delivery by the ao-ent was held sufficient to pass the property in the thing given and to avoid a conviction for the larceny of that thing. The leading case in favor of this view is that of Rcy. v. Prince,* in which the wife of Henry Allen received from the 5 1 Mood. C. C., 137. [ i 1 Mood. C C.. 119 2 1 C. C. Res., 155. 254 EFFECT OF DELIVERY BY AN AGENT. [g. 124. cashier of a Bank certain money which her husband was enti- tled to receive, by presenting to him a forged order of payment from the husband. Bovill, C. J., said "that the bank clerk had a general authority to part with both the property in and possession of his master's money, on receiving what he believed to be a genuine order." Blackburn, J., said "where the servant has an authority co-equal with his master's, and parts with his master's property, such property cannot be said to be stolen, inasmuch as the servant intends to part with the property in it. If, however, the servant's authority is limited, then he can only part with the possession, and not with the property ; if he is tricked out of the possession, the offence so committed will be larceny The cashier holds the money of the bank with a general authority from the bank to deal with it. He has authority to part with it on receiving what he believes to be a genuine order. Of the genuineness he is the judge ; and if under a mistake he parts with money, he none the less intends to part with the property in it, and thus the offence is not, according to the cases, larceny, but an obtaining by false pretences." The learned judge himself added, however, that "the distinction is inscrutable to my mind, but it exists in the cases." It is further to be borne in mind that the mistake in this case was not as to the identity of the person or the thing, but as to the right of the wife to receive the money, and this distinction has special importance, because, as explained above in sections 58-60, while a mistake of the first sort prevents a transfer of the thing given, a mistake as to the motive receives no legal effect whatever. 3 In Reg. v. Middleton* also, no doubt, Bovill, C. J., Kelly, C. B., and Keating, J., did not concur in the view of the majority, and supported the conviction on the ground that the clerk who delivered the money had only a limited authority to part with it to the person named in the letter of advice, and therefore no property passed to Middleton, and he obtained the possession animo furandi. Bovill, C. J., in delivering his own and Justice Keating's decision, said : " In all these and other similar cases, many of which are collected in 2 Russell on Crimes, 211 to 215, the property was considered to be taken without the consent and against the will of the owner, though the possession was parted with by the voluntary act of the servant, to whom the property had been intrusted for a special s Supra. S. .'0. | * 2 C. C. Res., 3*. S, 124.] EFFECT OF DELIVERY BY AN AGENT. 255 purpose. And where property is so taken by the prisoner knowingly, with intent to deprive the owner of it and feloni- ously to appropriate it to himself, he may, in our opinion, be properly convicted of larceny." He added, however, that "the case is very different where the goods are parted with by the owner himself, or by a person having authority to act for him, and where he or such agent intends to part with the property in the goods ; for then, although the goods be obtained by fraud, or forgery, or false pretences, it is not a taking against the will of the owner, which is necessary in order to constitute larceny." Kelly, C. B., distinguishing the case of It. v. Prince on the ground of the decision in R. v. Longstreeth, said that the latter " decision governs the present case, and conclusively shows that if a servant delivers to the wrong per- son a chattel which it was no part of his duty and which he had no authority to deliver to any but the owner, and the receiver takes it, knowing that it is not his own but belongs to another, and animo furandi, such receiver, although the deli- very is made in the ordinary performance of the duty of the servant, is guilty of larceny." The mistake in this case also was really not as to the identity of the payee or as to the money paid, but as to the payee's right to receive that sum of money, and therefore the decision is not relevant to the present controversy. The fallacy of the principle underlying the views of the three judges was exposed, however, by the other judges who held that the authority of the clerk was general, and if the views of the three judges were right, Middle- ton would be entitled to an acquittal. 5 Bramwell, B., thus observ- ed: ''It is said that here ihedominus was invitus ; that the dominuswas not the post-office clerk, but the Post-Master-Gene- ral or the Queen ; and that therefore it was an unauthorised act in the post-office clerk, and so a trespass in Middleton invito domino. I think one answer to this is, that the post-office clerk had authority to decide under what circumstances he would part with the money with which he was intrusted. But I also think that for the purposes of this question, the lawful possessor of the chattel, having authority to transfer the pro- perty, must be considered as the dominus within this rule, at least when acting bond fide. It is unreasonable that a man should be a thief or not, not according to his act and intention, but according to a matter which has nothing to do with them, and of which he has no know- 3 C. C. Ecs,, 57. EFFECT OF DELIVERY BY AN AGENT. [S. 124. ledge. According to this, if I give a cabman a sovereign for a shilling by mistake, he taking it animofurandi, it is no larceny ; but if 1 tell my servant to take a shilling out of my purse, and he by mistake takes a sovereign, and gives it to the cabman, who takes it ammo furandi, the cabman is a thief. It is ludicrous to say that if a man, instead of himself paying, tells his wife to do so, and she gives the sovereign for a shilling, the cabman is guilty of larceny, but not if the husband gives it." Brett, J., likewise said: 8 "Where there is a delivery of the goods by the owner there can be no felony if the owner intend to part with the property in the goods, however fraudulent the means by which such delivery was procured. When the delivery is made by a servant or agent of the owner, and the servant or agent has an authority to pass the possession of and the property in the goods as if the owner were present, the same rule is applicable as if the delivery had been made by the master. But if the delivery be by a servant or agent whose authority is limited, extending only to pass the possession and not to pass the property, then the proposition applicable is that which applies when the master delivers only the possession and not the property. Although the servant delivers the goods, intending to pass both possession and property, the prisoner may be convicted of larceny if he obtained the delivery by fraud ; just as if by fraud he obtained delivery from the owner who intended by such delivery to give possession only, and not to pass the property. I cannot agree with a judgment which decides that even though the clerk had a general authority to part with the possession of and property in the money, an authority equal to that of the Postmaster-General if he had been pre- sent, and even though the clerk intended to part with the possession of and property in the money, yet that the prisoner was properly convicted. I think that such a judgment is founded upon and enunciates a wrong proposition of law. But if the clerk had only a limited special authority to part with only the possession of the money entrusted to him, or a limited special authority to part with the property in a different sum from that which he delivered to the prisoner, or a limited special authority to part with a similar sum to that which he delivered to the prisoner, not to the prisoner, but to another person ; then I am of opinion that the prisoner, upon the assumption that the other parts e 3 C. C. Res., 6-4. S. 125.5 MISTAKE AS TO THE IDENTITY OF THE PERSON. 257 of the definition of larceny were proved, was properly convicted of taking the money without the consent of the Postmaster-General, and properly convicted of larceny. , Bat he bad authority to part not with any specific money, but with any of the money entrusted to him to any one of all the persons who should properly present a genuine warrant. That seems to me to be a general authority. To all such persons he had authority to give possession of the money, in order that they might keep it, that is to say, he had authority to pass to all such persons the possession of and the property in the money which he handed to them. It seems to rne, therefore, that as to passing the possession of and property in the money which he should deliver, he had a general autho- rity to deal with the money as if in the place of the owner." In India, this question of the agent's authority to give could arise only in case of the thing given having been in the posses- sion of the wife ; clerk or servant, but on account of the different requirements of the otfence of theft, the commission of that offence depends quite as much on the receiver's belief as to the authority of the person making the payment ason the existence of that authority. 125. There has been, indeed, an acquittal in some cases of a mistake as to the identity of the person ho receives the thing or of the thing received itselt, but only when the re- ceiver of the thing had no knowledge of the mistake at the time of its receipt. The acquittal, in those cases, proceeded not on the ground that there was consent to his taking the thing, but that there was no taking or no animus furandi at the time of the taking. And this is the rule whatever the nature of the mistake, provided the mistake is such as to prevent the trans- fer of the property in the thing given and taken. To take first, the case of a mistake as to the identity of the person, because in the criminal law, unlike the law of contracts, such mistake has always a particular importance. The leading case in regard to such mistake is that of Rex v. MucUow* 7 in which a letter containing a draft for 10 odd, meant for a certain person, was delivered by mistake to another person of the same name, who appropriated it, but was on an indictment for larceny, acquitted on the ground that he had no animus furandi when he received the letter. In Reg. v. Daviss, 8 the facts were much the same, and Erie, J., directed the jury that if the pri- 7 i M.JO-.I. c. c., 100. I 8 i c<. c. c. f lo-i. 83 258 MISTAKE AS TO THE THING GIVEN. [g. 126. goner, at the time of receiving the order, knew it was not liis property but the property of another person of known name and address, and nevertheless determined to appropriate it wrongful- ly to his own use, he was guilty ot larceny. He added, however, that, in his opinion, the prisoner had not received it, until he had discovered by opening and reading the letter whether it belonged to him or not, and " that the law of larceny laid down in respect of articles found, was applicable to the article here in question." The accused was thereon convicted, but the Court of Criminal Appeal quashed the conviction on the authority of Rex. v. Muckloic. So also in The Queen v. Flowers, 9 a bag of money to be given to a certain person was, by inadvertence, given to another person, who took it, knowing of the mistake, yet his conviction for larceny was quashed ; though rather on the ground that the Kecorder had directed the jury that if the prisoner innocently received the money and afterwards fraudulently appropriated it, he was guilty of larceny. Similar cases have arisen in France also, and when goods were given on account of a wrong address to a wrong person who fraudulently retained and disposed of them, he was held not to have been guilty of theft, as there was no taking in such a case. The leading case on the point is that in which Balguerie was acquitted by the Court of Cassation in 1845 on the ground that the word soustraire, used in defining the offence of theft in Art. 379 of the Code Penal, involved the idea of an apprehension (seizure) and of a deplacement (removal), which ought to be the act of the offender. It appears to be settled there, that Art. 379 is not applicable to him who receives the thing or to whom the thing is delivered, and who afterwards in a spirit of fraud retains and disposes of it to the prejudice of the legitimate proprietor. K. Garraud also, in his Treatise on French Penal Law, 10 after referring to that import of the word soustraire, sa}-s that that condition is not found when the object has been delivered to the accused on account of an error as to his identity. These grounds are specially applicable in India, as the vol of the Code Penal is more like the theft in the Indian Penal Code, than the larceny of the English Law. 126. The same rule applies even when the mistake is as to the thing which is given, and as to the thinggiven. " Ie g al character of the act of taking which comes in question. There is no stibstan- 10 Q. B. IX, 613. J ~io V. 8s. s. 126, j MISTAKE AS TO THE THING GIVEN. tial distinction between a mistake as to the subject-matter of a transfer, and a mistake as to the identity of the transferee. The difference in the two cases is a difference in the instance and not in. a point that affects the principle. The giving and taking in each case is on account of a mistake, which relates to a matter essential to the act, and without which the act would not have taken place. The cases in which there is a mistake as to the nature of the thing given and taken are no doubt distinct from those like Merry v. Green, 11 but only so far that in the latter class of cases the question is as to the giving and taking of a thing of which the existence is unknown, and which is quite independent of the thing intentionally given. In the case cited, for instance, the bureau alone was given and intended to be given, and the purse hidden in it was a thing unknown, and separate from the bureau. In R. v. Ashwell, and R. v. Hehir, on the other hand, the external tangible tMn. j " 1 Mood. C. C., iGO. 14 2 C. C. Res., 38. 8. 127.] MISTAKE OF MOTIVE CONFUSED WITH THAT OF IDENTITY. property in the said money did not vest in him, and as he received the money knowing of the mistake lie had the animus furandi necessary to constitute larceny. In their joint decision, it was observed in one place that the "Postmaster-General intended that the property in the money should belong to the man before him, though lie intended that in consequence of a mistake as to his identity." In another place, the case was likened to that '* of a person handing to a cabman a sovereign by mistake for a shilling," which is a clear case of a mistake as to the identity of the thing. Kelly, C. 13., also likened the case to that of a person taking one watch for another. Cleasby, B., however, pointed out the fallacy of these views, and said : "There was no mistake in the person, because the prisoner handed in his order and also his deposit book; and if the clerk had known him well it would have made no difference. He would still have paid him the wrong amount, because the same cause would have operated, looking at the wrong order. There was no mistake in the amount. I mean it was riot the case of the clerk handing him a 100 note when he intended to hand a 5 note, or, unknowingly, two notes instead of one. He intended to pay the prisoner the particular sum ; and it was a deliberate act, because he took the amount from a document, and completed the transac- tion by debiting the prisoner with that sum in his book. So that it was not like the case of a wrong sum being put down by mistake and the prisoner snatching it np and running away with it for the purpose of preventing the mistake from being set right. The mistake was in the supposed amount of the prisoner's claim. The prisoner ap- plied for 10s., and the clerk thought he was entitled to more and paid him accordingly, and this over-payment might have been afterwards adopted by the postmaster, so as to make the prisoner chargeable with the balance. The clerk did not the less intend to make the payment which he deliberately made, because he was at the time under the influence of a mistake; he would not have intended to make the payment but for the mistake. Mistakes are constantly occurring, and few people can say that they have not acted under their influence, but their acts remain as acts done at the time, though their effects may be afterwards corrected. No doubt there was no intention to overpay the prisoner, that is, to produce the effect of over- payment; but the intention was to do the act of paying the larger sum, because it was thought to be a proper one." 2(52 DECEIVING A THING BY MISTAKE OF MOTIVE. [fl. 12ft. 128. In Wolfstein v. People, 1 '* there was no confusion made as to the nature of the mistake, and yet the How far receiving of rece j v i n cr o f a sum greater than "that to a thine given bv mistake , . , *Vi t . , as to motive is' larceny. wh ' ch a P erson was entitled was held to be larceny. The facts of the ca*e were like those of Reg. v. Middleton, a draft written in the French language, having been presented for payment to a bank, the teller of which was unable to read French, and mistaking the figures $74 for $?42, paid that sum to the person presenting it, who, though knowing that he was entitled to $74 only, and that the excess WHS paid to him by mistake, kept the same concealed, and denying the overpayment, appropriated it to his own use. The Court said : "The money in excess of that which he is entitled to receive, is taken without the owner's consent, and that which is thus taken is appropriated to the taker's use with intent, fraudulently, to deprive the owner thereof. These two elements make the crime of theft, and they are both pre- sent here," The Court did not assign any reasons for assuming it, almost without argument that there was in such a case a taking of the money without the owner's consent. That, the decision is not tenable appears chiefly from the analogy on which the Court relied in support of it. The Court said: " Where money or property is obtained from the owner by another upon some false pretences, for a temporary use only, with the intent, feloniously, to appropriate it permanently, the taking, though with the owner's consent, is larceny. Where- in do the cases differ. In botli there is a physical delivery by the owner, and in both the taker knows that it was given for no such purpose as he was in mind, and yet he, unlawfully and wickedly, in both cases, seeks to deprive the owner there- of. If the one case is larceny, the other is also. It has been explained above, that the absence of a person's consent is essential for a larceny of his things, and that false pretences cannot negative consent ; but even if the case supposed should be one of larceny, the existence of these pretences is sufficient to distinguish it from the case actually before the Court." In The Queen v. Hollis the Court of Queen's Bench Divi- sion, appears to have gone still further. There a person went to an inn and fraudulently got a sovereign from the barmaid, giving her by the trick of ringing the changes full change, but which consisted partly of coin given by the barmaid herself to be returned, and it was held that he was guilty of larceny. 15 6Huu, 121. I a 12Q. B. D., 25. S. 128.J BECEIV1NG A TII1KG BY MISTAKE OF MOTIVE. 263 Coleritljre, C. J., with whom the other Judges concurred, said : " I cannot see, if a person goes into a place and fraudu- lently, by a series of tricks, obtains possession of property from another which that other has no intention of parting with, how the offence can fail to be larceny." In this case, the barmaid certainly intended to part with the sovereign, though under a mistaken idea or hope, and it. was contended that she had general authority to act for her master in such a matter as giving change, and that the transaction was complete before she discovered the fraud, and that therefore the properly in the money had passed. The contention was overruled, however, especially as the jury found that the barmaid had no intention to part with the property in the sovereign except for full change. It may be submitted that the sovereign was given absolutely, and though it would not have been given but for the belief that full change had been given for it, yet on account of that very belief, it was given unreservedly and without any limitation or reservation. In this case, full change had also as a fact been given, though it was made up partly of the money given by the barmaid herself. This might give a cause of action for the recovery of that money, but could not atfect the transfer of the property. So far is the rule carried in France, that the Court of Cassation decided in a case in 1864, 17 that a person who refused to return a piece of money, which had been given to him just for examination did not thereby commit theft. A distinction has indeed been made there between la remise volvn- taire and la remise necessaire, the former alone, when followed by a fraudulent apprehension, being able to result in an offence. The question has arisen there also in cases in which there appears to be thus no real authority for holding that a mistake as to the motive for giving a thing can attect the validity of the consent implied in the giving, or bar the transfer of the right intended to be transferred by it. On the other hand, the decision in Reg. v. liehir involves the view that a mistake in regard to the value of a note could not affect the consent to the giving of the note which was given, nor the legal consequences resulting from the de- livery in pursuance of that consent. Palles, C. B., thus said : " The conviction here must therefore, if sustainable, rest upon this point that a mistake in the mind of the donor, of a particular quality in a chattel, of the existence of which chattel " V. Gar. Dr. Pen., 88 (). 0(54 MISTAKE AS TO THE IHING IN FUENCH LAW. [g. 129. the giver has knowledge, and which chattel is physically hand- ed over to another, is as regards the possession of that chattel the same, as if the donor were ignorant of its existence. Now, this was the proposition as to which the Judges in Reg. v. Ash- tcell ls were equally divided, and for this neither Cartwriyht v. Green, nor Merry v. Green, was an authority. The actual decision, therefore, in Reg v. Axhicell, whilst it overruled three cases, has not the advantage of a single prior authority to support it, and whether right or wrong, was one of first im- pression." After pointing out the extremely loose and general character of Lord Coleridge's remark as to holding ** that a man did what in sense and reason he certainly did not, that a man did in law what he did not know he was doing," the learned Judge went on : ''If he intended to convey that because a man mistook the value of a coin which he know- ingly handed over under a mistake as to its value, intending that the coin should cease to be in his possession, and that it should be in the possession of another, he did not in law part with the possession of that coin ; he assumed, without argument, the question to be decided." 129. In France also, when a note of a higher value is given by a person as one of a lower value, the 5?^* mist ke ? P erson who takes it; with a knowledge of to the thing m French f, , . c , . * law of theft. the mistake at the time of the receipt, or who takes it without such knowledge, but appropriates the same after discovery of its real value, is not con- sidered guilty of theft ; though this is rather on the ground that in such cases there is no taking as an act of the guilty party, but merely a giving ; and not on the ground that the consent to the taking involved in the act of giving is a sufficient consent, notwithstanding the mistake or consequent misconception. Thus, where an individual by mistake gave to one Rabeau a bill for 500 francs in lieu of that for 100 francs, and she was convicted, the conviction was set aside on appeal in 1853, the Court of Cassation saying that there was no sous- fraction in the precise and legal sense of the Avord, as the delivery had been made voluntarily by the proprietor to the accused ; that it mattered little that this delivery was the result of an error, and that the accused had knowingly and voluntarily profited from that error ; that it mattered still less that this error had been discovered by the accused at a time more or less near that when the delivery was effected, and that it was further established that the fraud commenced from the very moment of 18 10 Q. B. D., 190, s. 129.] M:STAKE AS TO THE THING IN FRENCH LAW. 265 the discovery ; that in fact a voluntary delivery being abso- lutely exclusive of the very act of soustraetion, it followed that all the ulterior circumstances, whatever might be their character, the date and the morality, could not re-act against the delivery to destroy its bearing or modify its effects. 19 And in a case, where a creditor had by mistake received a bill for fifty francs, and fraudulently appropriated the sam*, it was held in 1871 that that did not/ constitute vol ; as there was no- soustraetion in a case in which there was a delivery, and Art. 379 was therefore quite inapplicable, the act imputed to the accused being no more than a retention* The Court of Cassation has also held that a person who, having inadvertently received a piece of ten francs instead of that of "fifty centimes, refuses to return the same after the discovery of the mistake, is not guilty of theft. In another case, Poupinel received a *ac of 1,000 francs in lieu of that for twenty-five francs which the person believed he was giving, and the Court of Cassation quashed his conviction for theft on the ground, that for theft it was necessary that there should be a fraudulent soustroction of a thing pertaining to another person, that soustrcdre cest prendre, cest appriehmder contrs le qre dtt prop'rietaire, and that if the thirg is delivered to him who appro- priated it fraudulently, there could bs no theft. 31 The most notable case, however, is that in which I'arthelemy in p.iyment of a bill of one hundred and thirty -four francs and five centimes payable to Perrot, paid three hundred and thirty-four francs and five centimes to him, piling them up in bis temporary absence on the counter in three piles, equal and distinct, each of one hundred francs, and on his return counting in a high tone one, two, three, and asking him whether it was right, and he taking them all with on? turn of the hand without making any observation. When taxed four days after, he denied having received more than the correct amount of the bill, and it was held in 1856 that there was no theft as there was no souxtriic- tion, and fraud and bid faith accompanying an act other than that of sou&traction are not sufficient to constitute theft. The Court of Cassation observed that it mattered little that the sum had not been put into the very hands of the offender, and that it had been counted at fir^t on the counter, as the pro- prietor had not been dispossessed without her knowledge or against her will : and that it also was not material that the V. Adolj.li. and Hclie, 37. | 20 V. B'aaoY Elud. Prat., 630. 34 266 MISTAKE AS TO THE THING IN ffREKCUi LAW. sum had been reckoned by small distinct and separate groups, of which two would have formed two hundred francs which were not due, as all had been given and received indistinctly by the same title of payment, and that if for the part legi- timately paid, the elements of theit were completely wanting, they were incomplete for the surplus. 21 Th same has been held even when the excess paid by a debtor and received by the creditor forms a distinct part of the money or the bills which represent the sum really due, if, at )east, the whole has been delivered and louche a titre de paiement. This has been denied, in cases in which the debtor, with- out intending to practice any deception as to the amount of his debt, and wishing to make payment of it, himself makes a mistake, by ignorance or inadvertence, as fcotlie amount of the money or the bill which he hands over in payment, and the creditor, instead of removing the mistake, fraudulently pockets the sum thus delivered for another; as in such a case, the physical act of delivery is not accompanied by an intention of divesting one's self of proprietorship in what is given, and therefore there is no voluntary delivery. R. Garraud observes, in reply to this, that there can be no theft where there is no soustraction, the intention of the victim who delivers the object being immaterial. 23 So far is the principle of the immateriality of the intention carried, that no distinction is recognized even between la remise volant airs, the result of an error fortuits or provoquee, and la remise mvolontaire, which is the act of a madman, of an idiot or of an individual in a state of intoxication. The contrary, however, has sometimes been held, even the Court of Cassation admitting in fact, that the delivery of an object, which has been made by the legitimate possessor or another person, either on account of error or of machinations dolosivsSj has the effect of excluding- the apprehension, the element constitutif of theft. It has even been decided, that it is impossible to assimilate even to an erroneous voluntary delivery, the delivery made by an insane person, or by an idiot who has no knowledge of his act, and who bears only such a quasi-animale will that the person making the delivery is only a passive instrument, by the aid of which he who receives the thing, in reality, takes it fraudulently. R. Garraud, * V. Blanch. Eiu'l. I'rat., 634. ) 22 V. Gar. Dr. Pen., 88. 8. 130.] NO LARCENY IF RECEIVER SHARED GIVER'S MISTAKE. 267 in his Treatise on the French Penal Law, 23 observes that he cannot concur in recognizing that distinction, as it involves a contradiction, and says : Est-ce que celui qui remet, sans le savoir, tine somme plus forte que cetie qv'il veut verser, ne doit pas etre reyarde, quant a cctte remise, comme ayant aji mconsciemnient ? Et, cependant, celui qui a rec, uplus qu'il ne lui etait du et qui le retient, m commet pas de vol. Comment et pourquoi en serait-il autrenient, parce qus la remise aurait ete faite par un indiiidu prtve de toute raison et de toute wlonte.(c) 130. It has sometimes even been held that the receiving- of ^j a thing given by a mistake as to its No larceny if person identity, is larceny, even when the re- ,/nn ceiver shared in that mistake. Thus in mistake at time ot r* * rec eipt. owfe v. IJucker, the jury was charged that : " If the prosecuting witness delivered to the defendant ten twenty-dollar gold pieces under the belief that he was giving him that number of silver pieces, and the defendant so took them sharing the mistake, and if, upon discovering the mistake, the defendant knew or had the means of knowing who the owner of the gold pieces was, but he thereupon, nevertheless, converted them to his own use, it was larceny." Prim, J., who tried the case, said : "The money in excess of that which the appellant was entitled to receive was taken without the owner's consent, and that which was thus taken was appropriated to the appellant's use with an intent to cheat and fraudulently to deprive the owner thereof. These two elements, being both present in this case, are sufficient to constitute the crime of larceny." This decision was clearly wrong, in so far as it ignored the necessity of the two elements being: synchronous. This was felt in Wolf stein v. People, in which the Court went on to observe : " If, however, the error was not then noticed, but was afterward, and the intent of felonious appropriation was then formed and executed, the legal guilt of the prisoner was at that time incurred. As in the case of the finder of the lost article, the original taking may be lawful, but legal (c) Is ifc that he who delivers, without knowing that, a sum more than that which he \rishes to pay ought not to be regarded, as to that delivery, as having acted uucon- aciously ? And, however, he who has received more than was due to him, and -who retains it, does not commit theft. How and why should it he otherwise, because the delivery should have been made by an individual deprived of all reason and of all will V. 90. 1 * SOrog,, 3'J4. | as 6 Hun., 121. N0 LARCENY IF RECEIVER SHARED GIVER'S MISTAKE. [S. 13O. Hoeountability as for crime begins when the owner is dis- covered, and the intent formed unlawful ly and feloniously to deprive him of the possession thereof." The leading- decision in support of the view is that in R'>g. v. A*hwelly Z * in which Keogh hande.l to Ash well a sove- reign, believing it was a shilling and not a sovereign, upon the terms that he should return a shilling on receipt of his wages. Ashwell also on having t'.ie sovereign handed to him li mes'ly believed it to be a shilling, but after an hour (at 9 p. m.) discovered that it was a sovereign, and appropriated it getting change for it. At 5--0 next morning Keogh went to the house of Ashwell, who first deniad having got the sovereign, and afterwards refused to return even the shillings that hud remained wit'i him, on the g ound that he had asked only for a shilling. Ashwell was c mvicted of larceny, tli3 majority of ths judges in favor of the oavictiori, holding that there could be no consent to a person taking possession of a coin delivered to him without a correct knowledge of its value, and that th'jrefjre Adi well a2]_uirel possession only wlien he came to know that it was a sovereign, and not merely a shilling that had been delivered, and that thus he was in the position of a finder of lost goois. (BJ In support of that vie ; ,v, (R) Smith, J., explained the unsound ness of the argument derive! from tho anali.-v of the finding of goods, by pointing out that it was b:i.sed on tho coufusion of the finding out of a mistuke with the finding of a chattel. He observed 2 'tli.it " the principle upon which a finder of a lost chattel has been held guilty of larceny in, that he has taken and c-uiTitd a\vay a chattel, nor believing that it hid been ab indoned, and at the time of such taking has had the f- lon.'ous iuteut. The proj er direction tc be given to a jury beiug, as I understand, 'Did the prisoner at the time of finding the chattel iutea I to appropriate it to his own use, then believing that the true owner could be found, and that the chattel had not been abandoned. If he did, he would be guilty o': larcvny, aliter he would not. Keogh intended to deliver the coin to the prisoner, a.jd the prisoner to receive it. The chattel, namely the coin, was delivered over to the prisoner by its owner, and the prisoner received it honestly. He always knew he had the coia in his possession atter it had been delivered to him. The only thing which was subsequjntly found was that the coin delivered was worth 240 d., instead of 12 d., as had been supposed. This argument, as it sterns to me, coufonud* the finding out of a mistake with the finding of a chattel. In some cases, the fiuder of chattel may be guilty of larceny ab Common Law : but ho jv does that show that the finder out of a mistake may a!s> be guilty of such a crime? A mistake is not a chattel The chattel (namely the coin) in this case never was lost; then how could it be found ? In my judgment the argument upon this point for the Crown is wholly fallacious and f;iils. (After quoting Baron Parke's d ctum in Merry v. (rreen 3 ^) 1 understand the le.'iiMed Baton when he says 'the law applicable to all cases of finding applies," to mean the law applicable to the c-isos of finding a chattel, f:>r there are no cases extant as to fiuding out a mistake to which his remark could apply." R. Gavraud, in his Treatise on French Penal Law, 80 says: "No contradiction exists between th* two solutions : that which does not see theft in the deed of abusing an inadvertence or error of the proprietor who delivers an object to the author of the 2 ;i Ifi Q. P. D., 190. I zs 7 jf. A- W., T23. " 10 Q. H. D., I'.Ki. 29V. ti. S. 130. ; NO LARCENY IF RECEIVER SHARED GIVER'S MISTAKE. 000 it was argued, that as the coin was given and received under o ^ o the impression that it was a shilling and not a sovereign, the prosecutor could not be deemed to have consented to part with tlie possession of the sovereign, and consequently there was no taking by the prisoner at the time of the receiving, but at the time of the discovery of the value of the sovereign, and then also without the prosecutor's consent, so that he must be deemed to have had felonious intent at the time of taking it. Thus Lord Coleridge said : " It. appears to me that the sove- reign was received by the prisoner and misappropriated by him at one and the same instant of time. In good sense, it seems to me, lie did not take it till he knew what he had got ; and when he knew Avhat he had got, that same instant he stole it." Cave, J., also supported the conviction, and said/ " It is impossible to come to the conclusion that, at the time when the sovereign was handed to him, the prisoner, who was then under a bond fide mistake as to the coin, can be held to have been guilty of a trespass in taking that which the prosecutor gave him. It seems to me that it would be equally logical to say that the prisoner would have been guilty of a trespass if the prosecutor, intending to slip a shilling into the prisoner's pocket without his knowledge, had by mistake slipped a, sovereign instead of a shilling .... In order that there may be a consent, a man must be under no mistake as to that to which he consents ; and, I think, therefore, that Ashwell did not consent to the possession of the sovereign until he knew that it was a sovereign." He further supported that view by reference to the consequences of the receiver's acts in regard to the thing before tho discovery of its exact nature and value, and continued: ''Suppose that, while still ignorant that the coin was a sovereign, he had given it away to a third person who had misappropriated it, could he have been made respon- sible to the prosecutor for the return of 20 shillings. In my judgment he could not. If he had parted with it innocently, while still under the impression that it was only a shilling, 1 think he could have been made responsible for the return of a shilling and a shilling only, since he had consented to assume the responsibility of a possessor in respect of a shilling only. fraudulent appropriation ; and that which sees, on the other hand, a theft in the act of an individual who should pick up in a street an object lost and appropriates it. The delivery of the object excludes the sountraction in the first case ; while this souttraction is the first act of the appropriation in the second case." P. P. 200 & 203. 270 No T'AROENY IF RECEIVER SHARED GIVER'S MISTAKE. [S, UO. It may be said that a carrier is responsible for the safe custody of the contents of a box delivered to him to be carried, although lie may be ignorant of the nature of its contents; but in that case the carrier consents to be responsible for the safe custody of the box and its contents whatever they may happen to be; and, moreover, a carrier is not responsible for the loss of valuable articles, if he has given notice that he will not be responsible for such articles unless certain conditions are complied with, and is led by the consignor to believe that the parcel given to him to carry does not contain articles of the character specified in the notice. 31 In this case Ash well did not hold himself out as being willing to assume the respon- sibilities of a possessor of the coin whatever its value might be; nor can I infer that at the time of the delivery he agreed to be responsible for the safe custody and return of the sovereign. As, therefore, he did not at the time of delivery subject him- self t the liabilities of the borrower of a sovereign, so also I think that he is not entitled to the privileges attending the lawful possession of a borrowed sovereign." This view is not correct, however, and it was not accepted by the majority of the Judges, the court beicg equally divided even as to the conviction. Stephen, J , referring 1 * 2 to the contention " that the delivery being made under a mistake, passed neither the property in the sovereign nor the right to a possession of it, and that the prisoner must be regarded as having taken it, not when he accepted it under a mistake as to its value, but when knowing its value he determined to appropriate it to himself, or when he did so appropriate it by getting it changed and keeping the change;" observed, that that " view is contrary to principle, because it evades by a legal fiction the principle that a fraudulent appropriation consequent upon an innocent taking is not larceny." Likewise Mat hew, J., said :' 3 " In my judgment, the subsequent dis- honesty of the defendant is no more evidence of a felonious intent when the coin was changed in this case than it would be where the coin was received upon an express promise, which was afterwards broken, to account for the change. I think if this conviction be affirmed, any dishonest dealing with the property of another, by whatever means possession of the property may have been acquired, may be made the ground for a prosecution for larceny." 81 Batsonu. Donovan, 4B. & A., 21. | s 16 Q. B. D. ; 209, 83 16 Q. B. D., 205. 8. 130.] NO LAECENY IF RECEIVER SHAKE!) GIVER'S MISTAKE, 271 And this latter and correct view prevailed in The Queen v. * the indictment in which was for larceny of a ten pound note banded by Leach to Hehir in part payment of a debt of 2 odd due by the former to the latter, and believed by both at the time of the handing to be a 1 note. Within twenty minutes afler Leach discovered his mistake, and when he found Hehir within another ten minutes, Hehir had become aware of the mistake, and with intent to appropriate the same had changed the note* Madden, Gibson, Holmes and Murphy, J. J., agreed with Lord Cole- ridge and the actual decision in The. Queen v. Ashicell, chiefly on the ground that the common mistake was a bar to the transfer of the property in the note and therefore of its possession, which must be deemed to have been transferred at the time of the discovery of the mistake. Thus Madden, J., said 35 : '* A man to whom a chattel is delivered under a mistake as to its identity, does not thereby acquire legal possession ; and if he subsequently discovers the mistake, and fraudulently misappropriates it to his own use, he is guilty of larceny." The majority of the court held, however, that the offence of larceny had not been committed, as there was no felonious intent when Hehir took the note, and that he took it when it was handed to him, and that he had lawful posses- sion of it from that time, though he then knew it to be only a 1 note. Most of the Judges discussed the question as to whe- ther there could be a giving or taking, a transfer of possession by the delivery of a note in the circumstances, whether there could be a consent to the giving or taking in the absence of a knowledge that it was a 1 note. Andrews, J., in his judgment, said :" I think with all respect it is not only an extreme refinement but an absolute fiction to say that, although the prisoner actually took the note when it was handed to him, still he did not take it until a subsequent time when he afterwards became aware that it was a 10 note and that he then took it, when in fact he did not take it at all, for he had it then in his possession, having received it sometime previously. Such a refinement seems to me to uproot one of the fundamental and well settled principles of the Common law of larceny, that an innocent taker does not commit larceny by his subsequent fraudulent appropriation of the chattel innocently taken ; and by a fiction, which should have no place in the criminal law, to ignore 3 * (1895) 2. I. B., 70J. I 3 5 P. 721. 272 NO LARCENY IF RECEIVER SHARED CJIVKK'S MISTAKE. [g. 130. the actual taking, and to make, in tiie language of Mr. Justice Tal foil I'd, * a mere movement of the mind' amount to a taking-. . . . \Vhat I have ventured to describe as a refinement .and fiction oives to the word take not only a meaning which in my opinion it does not bear in larceny, but a^o a strained and unnatural meaning which the word, as commonly used and understood, never conveys. I think the use of the word take, in this unreal sense is largely due to what I. repaid as the erroneous assumption that one man cannot intelligently give to another, and the other intelligently take, the lawful possession of a thing of which neither of them knows the quality or value, and which, if fhe giver had known the Quality or value of it, he would not have given." Palles, C. 13., said: *' If Leach had in fact the intention expressed by his act, the prisoner would have had lawful possession of the note ; mid L hold that so long as the prisoner believed the note to l>e f )\- 1, the prosecutor cannot be heard to say that he hud riot that intention ; and if he cannot, neither can he say that in the interval between the note being put into the hand of the prisoner, and the discovery by the latter of the mistake, the prisoner had not its lawful possession. Thus even if on the discovery of the mistake he was bound to return the note unconditionally, the conviction would be wrong." Sir J J . O'Brien, L. C. J., said : "It is said that, though the accused in this case got the note into his hand under circumstances where ex concessis the relation of master arid servant was not intended to be created, that though he got it into his hand though he got the chattel, the 10 note, into his hand he did not receive it. ... Leach, intending to part with the possession of it gave the chattel to Hehir, and, in my judgment, Hehir, to whom he gave it, in the eye of the law Jis well as in the eye of common sense, received it. The one gave unreservedly; the other honestly received unconditionally. True, the giver gave under a mistake as to its value, believing it to be a L note, whereas in fact it was a 10 note. Xo doubt he would not have given the particular chattel if lie knew it was a 10 note; but the very fact of his mistaken belief that it was only a 1 note, rnacle him give the note without any condition or reservation whatever. He manually transferred the chattel, to use the l.mguage of L^rd BramwrU in The Queen v. MiddletonJ* not involuntarily, not acci- dentally, but on purpose/' 30 2 G. l' and some exceptions in tueut. practice, fraud does not negative consent in criminal law ; and consent, even if 89 P. 27. j *e P. 64. 8 ; . 133.] EFFECT OP FRAUD ON COS SENT IN CRIMINAL LAW. 275 caused by fraud, negatives an offence, of which the absence of consent is an essential constituent. There are cases which lay down the law in general terms, that wherever there is consent, even though obtained by fraud, the crime is not committed. And this is true, even though there may be some other offence committed notwithstanding such consent. Thus the taking of a thing will not be larceny, even if the consent to the taking is given on account of fraud, thousfh in the Indian law, it may constitute cheating. So sexual intercourse with a female is not rape when her consent to it is given on account of fraud, though in some cases it has been held to be an assault. 41 Toillus- trate the general proposition in regard to rape, it may be looked upon as settled that, except in particular cases under special legislation sexual intercourse with a woman with her consent is not rape, even when the consent has been obtained by fraud. Thus Stephen in his Digest of the English Criminal Law lays down that if conscious permission is given by her, the intercourse does not amount to rape, although such permission may have been obtained by fraud, and although the woman may not have been aware of the nature of the act; the only exception mentioned being that specially enacted in regard to the false personation of the woman's husband. In the United States also, it is generally held that rape is negatived by the woman's consent, even if it should have been obtained by fraud. Thus Dr. Bishop says: "Where the woman consents in fact to the connection, it is not rape in the man though he obtained her consent by persuasion or even by fraud, if a physician tells a woman that copulation is neces- sary in the treatment of her case, and she consents through faith in his representation, it is not rape. Though her consent was obtained by fraud, still she consented." 4 * There is a general agreement that it is not rape where a medical practitioner represents to a patient that coition is necessary for the treatment of her case, and she consents to connection with him, through a belief in his representations ; for tin re is a consent to the act, though fraudulently obtained; 43 though of course there will be no consent to the coition if she consented only to a medical examination or treatment of her, or even to a medical operation. Stowe, ,T., said in Com. v. Child s 44 : " No amount of persuasion or solicitation, however improper, no amount of deception or even fraud however villainous or outrageous, will make illicit * 1 Reg. ?-. Saunders, 8 C. & P., 265. I * 3 Walter v. People, 50 Barb. 144 * a II, Bish. Cr. L., 647. * + 2 Pitts., 381. 276 INTERCOURSE BY FRAUDULENT PERSONATION OF HUSBAND. [S. 134. intercourse constitute rape, where the woman, induced or persuaded, consents to the act." This has been held in some other cases also. It is a general maxim, that the employment of arts and devices, without force, is not sufficient to constitute intercourse the offence of rape. 45 It is generally held that there can be no conviction for rape where tlie woman's consent, was obtained by stratagem or by surprise or fraud, as by a fictitious marriage ; nor where her consent was obtained by fraudulent representations. In State, v. Murphy, 4(j Collier, C.J., in deliver- ing the opinion of the Supreme Court of Alabama observed, " If a woman be beguiled into her consent by marrying a man who had another wife living, or by causing the nuptials to be illegally celebrated and persuading her that the directions of the law had been observed ; in neither case will the pre- tended husband be guilty of a rape." 134. That consent obtained by fraud is not necessarily such as must be entirely inoperative in crirni- Intercourse with a na | l aw , is borne out also by the ;rZ4 y to d ,^ common W relating to what are gene- band. rally called personation cases. The question of the guilt in such ca*es has now been settled in England, India and in the greater part of the United Stares, by special legislation ; but the older doctrine is still of considerable value for illustrating the exact effect oF fraud on consent. In England it was held in a long series of cases that if a person had connection with a woman by entering her bed and lying there with her as if he were her husband, he would not have thereby committed the offence of rape. The leading case is R. v. Jackson* 1 in which this was held by eight judges against four, Dallas, C. J., pointing out forcibly the difference between compelling a woman against her will, when the abhorrence which would naturally arise in her mind was called into action, and beii'uilincr her into consent and * ~ ~ co-operation. Some of the eight judges expressed a doubt, and intimated that if the case occurred again, they would advise the jury to find a special verdict. This decision was however followed in R. v. Clarke,** in which Jervis, C. J., in giving the opinion of the Court 49 observed that the court had conferred with several of the other judges, and that the question could not be permitted to be re-opened. In these two cases, * 3 People r. Royal, f>3 Cal., 62. ^ Russ & R., 487. ' (iAla., 765. * fi Cox. (J. C., 412. ^' J Ji-i-vis, C. J,, AMovrm, R., CoWidgo, J., Martin. !!., ami fro\vubted by all the Judges ("Kelly, C. B., Mellor, J., Denman, Field, and Huddleston, J. J.,) in The Queen v. Flattery, 5 which was decided, however, on another point. The Irish Supreme Court held the contrary, however, after a consideration of all the English cases in Reg. v. Dee? in which the person having the intercourse with the woman knew that she mistook him for her husband, as when he entered the room, she considering him her husband said (in her sleep) "you came in very soon." She discovered her mistake, and withdrew her consent during the act. The decision proceeded on the general ground that she did not consent to the connection with that person, and therefore his act was a rape. May, C. J., Palles, C. B., and Lawson, J., relied chiefly on the fact that the act consented to was different 5 R. v. Frances, 13 U. C. C. B., 116. 1 K. v. Williams, 8 C. & P., 286. 8 8 C. & P., 2G5. 15 Cox C C., 579. 3 1 Viet. c. 85. S. 11. * 11 Cox. C. C., 191. 5 2 Q. B. D., 410. 278 INTERCOURSE BY FRAUDULENT PERSONATION OP HUSBAND. [S. 134. from that done. Murphy, J,, indeed appears to have thought * IV. Adolph. & Helie, 317. 15 1829 Joum. Dr. Crim., 45. Oft/) NECESSITY OF FORCE FOR KAPE. [S. 135. Fraud is, no doubt, not an essential constituent of these offen- ces, because, as pointed out in The Qussn v. Hehir by Gibson, J.. "this absence of consent does not depend on fraud. It is a conceivable case that a married woman might in the dark submit to a man whom she believed to be her husband, without guilty intent on his part, from a mistake of rooms or otherwise." He no doubt adds, that '' in a civil action for assault I doubt that he could justify his possession of the woman by leave and license, though of course from absence of mens rea he would not be guilty of rape." 135. The opinion that consent obtained by fraud does not negative the offence of rape appears to Cases against con vie- be supported most often, as may have been tion for rape turn on the ,. , , c , * ,-, ~ , supposed necessity of noticed above, by reference to the final force for that oft'ence. decision in cases relating to rape. The acquittal in such cases, it must, however, be confessed, is not always a safe guide for the formation of an opinion as to the effect of fraud on consent, because in common law consent was, as explained in S. 95, often confused with will, and the use of force generally held essential for rape. Almost every writer on the Common law of England defines rape as the unlawful carnal knowledge of a woman by force and against her will ; and the definition has been adopted even by recent writers. 16 In Scotland, Hume in his Commentaries on the Criminal Law said, that to constitute rape the knowledge must be against h< j r will and by force; and he has been followed in that by Alison 17 and other Scotch jurists. 18 The same is still held sometimes by courts. Thus in Replo,'J!5 Mich. ,356. 3 2 2 Swan. ,394. 33 G Baxfc., 614. 34 1 Wheel. C. C., 378. 35 30 Ala., 54. 284 FORCE DID NOT INCLUDE MERE FRAUD. [S. 137. neither actual nor constructive force, and such act does not amount to the crime of rape." In Pleasant v. Stati there was an aggravated assault by a slave up-m a white woman, and the Supreme Court of Arkansas said: "The better authority would seem to be, that if the man accomplish his purpose by fraud, as where the woman supposed he is her hus- band, or obtained possession of her person by surprise, without intending to use force, it is not rape, because one of the es- sential ingredients of this offence is wanting." In Walter v. People? 1 it was held wrong to instruct the jury that, " where resistance is not made by reason of a representation leading the female to believe that sexual penetration of her body is necessary for the recovery from disease, the force used in ordinary intercourse is sufficient to constitute rape ;" the correct rule being that even if the defendant had accomplished his alleged purpose by fraud, without intending to use force, then such fraud does not constitute rape, unless ihe evidence shows that the defendant intended to use force, if the fraud failed. In State v. Brooles, 9 * the court expressly observed " that females are protected by law from violence of this kind, by the just infliction, of the severest penalty on offenders, but where there is no coercion in any form, and tricks and deception are employed to accomplish the same end, there, as against these, females are protected only by such laws as protect the whole community against fraud and imposition." In Reg. v. Gamfl\n t ^ Patteson, J., in pronouncing sen- tence, observed : ''The prosecutrix shewed by her words and conduct up to the very latest moment at which she had sense or power to express her will, that it was against her will that such intercourse should take place ; and it was by your illegal act alone, that of administering liquor to her to excite her to consent to your unlawful desires, that she was deprived of the power of continuing to express such want of consent. . Your case falls within the description of those cases in which force and violence constitute the crime, but in which fraud is held to supply the want of both." The verdict of guilty in this case was sustained by fifteen judges, but the reference to fraud was quite ultra vires however, as giving liquor to drink is not per ye a fraudulent acr, and there was no other fraud in the case, and the verdict of guilty did not proceed and was not based on the ground of fraud. " 13 Ark. ,360. as 7f> N. 0., 1. 3' 50 Parb., Idl. so 1 Cox. C. 0., 220. S. 137. j FORCE DID NOT INCLUDE if EKE FRAUD. 335 The same view appears to be taken on the Continent of Europe. Both French and German lawyers consider that consent obtained by fraud or machination leading to the non-resistance to an act is not equivalent to force or violence required for rape, and that sexual intercourse obtained by consent induced by fraud or machination is generally not rape. Thus Adolphe and Helie in their work on the Theory of Code Penal, 40 speaking of the absence of her resistance proceeding from fraud or guilty machination, refer to the question whether that fraud or that machination ought not to be considered as violence itself, and say that the negative has been decided in a personation case. In Germany, Halschner says, 41 that (lurch List keine "vis compuhiua" geubt werden konne, sei selbstverstandlich.W Olshausen, in his Commentary on the German Penal Code, 42 commenting on Art. 240, after observing that a person may be compelled to do an act only by violence or threats, and that if a person is induced to it by other means, it will be so not on account of compulsion but of a free determination, says : Es gilt dieses namentlich von der Anwendung der List, insoftrn der Ueberlistete durch f-ine Tauschung zu einer Ilaudlung, etc. verardasst, aber nichl genothigt wird. (9) And kann naeh der positiven Gesetzgebung List als eiii Mittel der Nothigiing ubsrhatopt nlcht angesehen werden.' h) In Italy, Francesco Carrara, in distinguishing fraud from con- structive force said : Qui potra esservi imjanno, potra esservi seduzione ; ma non vi e movimento alciino di .forze meccamche costringenti il corpo ; il quale concorse col seduttore aWcizione, 'per impulse proprio, senza che qnesti esercltasse abuso di forza morale costrinyenti Vanimo della vittima ad un atto die le fosse repugnante. 4 " 3 (t) (/) Through cunning no violence can be exercised is self-evident. (. i? IV Adolph. and Helie, 305. (n) 294 CONSEN'T OBTAINED BY FRAUD IN ABDUCTION. S. 142.] J., in Heg. v. Clarence speaking of the application in criminal cases of the maxim that fraud vitiates consent, observ- ed: "I do not at all deny that in some cases it applies, though it is often used with reference to cases which do not fall within it .... The only cases in which fraud indisputably vitiates consent in these matters are cases of fraud as to the nature of the act done. As to fraud as to the identity of the person by whom it is done, the law is not quite clear. The judgments in the case of Rig. v. Pee, justify the obser- vation that the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection con- sented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. There is abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. I should myself prefer to say that con- sent in such cases does not exist at all, because the act con- sented to is not the act done. T do not think that the maxim that fraud vitiates consent can be carried further than this in criminal matters." In the same case, 19 Field, J., after referring to what are called personation and surgical operation cases, observed, that in them, " the fraud by which the consent was obtained was a fraud as to person and circumstances, and did not as in this case relate to the very act of connection, its physical nature and conditions, and it seems to me to follow that a consent induced by a fraud relating to the physical nature and conditions of the act itself falls still more clearly within this principle." 142. Even in cases of abduction, fraud is not treated as identical with force, though, so far as the Consent obtained by comni i ss i on o f the ' offence is concerned, fraud does not affect ab- ,, ,. r ,-, . . , Auction. the operation ot the two is considered equivalent. Almost every legislature dealing with the subject, has enacted that fraud will constitute the offence of abduction quite as much as force will. The Indian Penal Code 20 thus enacts, that " whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person." In England, 24 & 25 Viet. c. 100, s. 56, provides for the punishment of i* 2:1 Q,. B. D., 43. I i P. 61. 20 S. 303. S- 142.] CONSENT OBTAINED BY FRAUD JN ABDUCTION. 095 any person " who shall unlawfully, either by force or fraud, lead or take away, or decoy, or entice away or detain any child under the age of fourteen years." S. 53 of the same Act provides for the punishment of any person who " shall frau- dulently allure, take away or detain such woman (having interest in any estate or property), being under the age of twenty-one years." Stephen, in his Digest of the English Criminal Law, lays down broadly that " if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such 91 person. The Code Penal ignores all distinction between le rapt de violence and le rapt de seduction of the ancient French Law, and Art. 354 of the Code provides the punishment ofredusion for every one, who should have, par fraud ou violence, enleve ou fait enlever dzs mineurs, ou les aura entraines, detournes ou deplaces, ou les aura fait entratner, detourner ou deplacer des lieux ou Us etnient mis par ceuce a Vautorite ou a la direction desqusls Us etaitnt soumis ou confies. Even in cases under that section, fraud is held not to negative consent which actual force w r ould in such a case do, but to negative free consent, which alone is really essential to avoid the offence of rapt. Thus, in a case where on an indictment of that offence, the defence was based on the consent of i:he parents of the girl abducted, and it had been obtained by a false assurance given to them as to the place where she would be taken, the court only said, that one could not call free assent that which had been obtained only by fourberie (trickj. 23 The Italian Penal Code also provides the one and the same punishment for any one who con violensa, minaccia o inganno, sottrae o ritiene, per Jine di libidim o di matrimonial And the reason for giving the same operation to violence and fraud in cases of abduction is well explained by Giulio Crivellari in his Concetti Fondamentali di Dlrittj enale. He says M that they are placed alternatively dalla dottrina e dalle legislazioni, perche la/rode come la violenza esdudendo it liber o comenso del soggetto passivo fanno sorgers (ciascuna di loro) la contraddizione del fatto col diritto della liberta individuate. La ragione dell'egua- glianza giuridica del due, mezzi consiste nella presunzions del dissenso ddla vittima, presunzione che risidta tanto dalla frode 21 Art. 279. ] 23 Arts. 340, 341. 82 IV. Adolph. & Helic, 496. 2 * Art. 119i>. 296 CONSENT OBTAINED BY FRAUD IN ABDUCTION. S. l*2.j quanta dalla violenza. Ed e do cosl v^ro^ die se taluno avesse fatto venire nella propria casa una donna mcdiante ingannevoli raa/jiri e poscia, trovatasi cold, avesse aderito di buona voglia ai disideri del suo rapitore, non vi sarebbsro gli estremi di un reato, perche alia violenza carnage ed al ratio violento mancherebbe Vestremo dell a vis ; He further adds that violence and fraud are not the real essence of the offence, which consists in the sogyiogamento di una contraria volonta, del quote, (fordinario, si ha una manifes- tazione nelVinyanno o nella forza adopcrati per ottemrlo. fm) And the same rule applied in regard to fraud and violence, when the offence was riot technically an abduction, but what in Italian Law is designated as plaffio, and which is defined as la violenta o fraudolenta abduzione di un uomo per causa di ~ The German Penal Code also provides for the punishment equally of a |3erson who removes a person from a place or with- draws a minor from the guardianship of any one, or carries away a female against her will, with certain objects whether the removal, the withdrawal, and the carrying away is by List, Drohung or Gewalt. The game appears to have been held even apart from special legislation, under the Common law. Thus in Reg v. JJopkins, 21 where a person was indicted for the abduction of an unmarried girl under six teen years of age, "against the will" of her father, the indictment was sustained, as it appeared tht the occupier to open the door, and thereon the person bound the constable and the occupier and carried off property from the house, he was held to be guilty of burglary. 43 And the same was held where a woman induced a boy by the promise of a pot of ale to let her into a house of which he was in charge and had the key, and then sent him to get the ale, and in his absence robbed the house and went away. 44 On the same principle, " the getting possession of a dwelling- house by a judgment against the casual ejector, obtained by false affidavits, without any colour of title, and then rifling the " house, was ruled to be within the statute against breaking the house." 45 So also obtaining admittance into a house under pretence of having a search-warrant, or an order for the distress or attachment of property, is breaking into a house. 46 Taking *i Art. 2034. | ** R. r. Hawkins, East P. C., 485. 42 P. 345. 45 Favre's case, Kel., 43. *a 3 Inst., 64. *6 Gasooigne, I Leach, 284. S 144.] CONSENT OBTAINED BY FRAUD IN HOUSE-BREAKING. in a house with a view to rob it is also deemed break- o ing into it. 47 And the same was held where persons knocked at the door, and got in on pretext of business with the owner. 48 It is, in fact, quite an established principle that if one, with intent to commit a felony, applies for and obtains admission to a dwelling under a fraudulent pretence of having business with the master of the house, this is a constructive breach. It is not necessary in such a case even that there should be any express pretext, as in the absence of anything else, such pretext will be presumed from the knocking. Thus in Johnston v. Commonwealth* 3 Rand J rang M's bell, with the intent of entering under the guise of friendship or the pretence of business and then robbing the bank, it was* held to be a burglarious entry; a breaking within the meaning of the law. Paxson, J., in delivering the opinion of the court, said : " Nor would it matter that one of the burglars had established such social relations with M that lie would have been admitted without question. It makes the fraud the greater. The dead -latch was down and the door was locked. The bolts were withdrawn upon the implied, if not express, assurance that they came there as friends for social intercourse or to transact business. This assurance in either cse was a trick and deception. The law is not so impotent as to permit a burglar to enter a hou>e under such circumstances and yet evade the responsibility of his act." The same was held in Ducher v. The State in which B was living in a house with her son, John, and they were awakened one night by some one knocking at the door, whom John called to come in. The person outside pulled the latch-string without being able to open the door, when they said that he could not come in. John then got up and opened the door, when two men walked into the house. After they had entered, one of them jiearly closed the door and stood by it; the other stated that they had a warrant for John Ondery from the prosecuting attorney of P - county. John asked for time to put on his clothes, and after he had done so, one of the men told him that they wanted his money, and asked for bis mother's money. John said it was in a chest. They told her to get the key, which she did. They tried to open the chest, where John told them the money was, and being unable *? Cassy, Kel., 62. I *" 85 Pa. St., 54, *3 Le Mott's case, Kel., 42. 50 18 Ohio, 31J, 302 CONSENT OBTAINED UY FRAUD IN ITOUSE-BREAKINO. [8. 144. to do so, with threats of violence induced her to do it, and then took from the chest the money described in the indict- ment. It was held, that this was a constructive breaking under the Ohio statute, which provides against a forcible breaking and entering. It will be observed, in the case above cited, that the door was oj?ened in obedience to a knock. Not a word was said by way of inducement to open it ; yet it was a mani- fest, trick and fraud, When a person rings the door-bell of a house, the owner has a right to presume that his visitor calls for the purpose of friendship or business. If, in obedience to tlie summons, he withdraws his bolts and bars, and the visitor enters to commit a felony, such entry is a deception and fraud upon the ownerj and constitutes a constructive breaking. Livingston's Louisiana Criminal Code distinctly provided that an entry into a house obtained by fraud was to be deemed as having been made without such consent as would negative the offence of housebreaking. l This view has, however, not been adopted in India, where a theft by getting an entrance into a house by fraud may be theft in a building, but nut housebreaking. Thus S. 445 of the Indian Penal Code provides that a person will be guilty of bousebreaking if he effects his entrance into, or departure from, the house by using criminal force, or committing an assault, or by threatening any person with assault. There is no mention here of an entrance or departure effected by fraud. If fraud could be treated as force, or consent obtained by fraud were, as such, no consent, the rule of English law would not have been departed from here. Evidently, absence of consent lias not been made an essential of the offence, so that there may be no room for an argument on the ground that consent obtained by fraud is no consent. In European countries burglary does not appear to be recognized as an independent offence, but the Code Penal provides an increased punishment for theft when it is committed with the aid of d'e {fraction or d'escalade or fausses clefs or of violence, and fraud does not form a part of 'any of them. An entrance gained by fraud is not deemed effrac- tion, even though the latter includes all forcement, rupture, de- gradation, demolition, and enlevemsnt of murs, toits, planchers, portes, fenetres, serrurcs, cadenas, ou autres ustensiles ou in- i Arts. 605, 606. S. 144.] CONSENT OBTAINED BY FRAUD IN HOUSE-BREAKING. struments servant a fermer ou a empecher le passage. 2 So also the German Penal Code provides higher punishment for theft \vhen it i committed from a building 1 by means of Einbruch or Einstdgen, and neither will be satisfied by the use merely of fraud. In Italy it is the same, theft bein^ declared punishable with redusion up to six years, if the offender to commit the deed or to carry away the property stolen distrugqa, demolisea, rompa o scassi ripari de solida matvria posti a tutela delta persona o della proprieta, o apra serrature, valendosi di chiavi false o di altri strumenti, o anche delta chiave vera perduta dot padrone, o a lid trafugata, o indsbitament3 avuta o ritenuta ; 3 arid fraud will evidently not meet any of the above require- ments. Fraud differs from violence in never being like it, an aggra- vation of theft. In the Spanish Penal Code, however, for purposes of theft from sacred places or inhabited buildings, the entrance by means of a certain sort of fraud, i. e., a la faveur de noms supposes ou en simulant Vwitorite, is placed on the same footing with the entrance by escalade, or rupture de mur ou toit, ou effraction de portes ou ferretres, or by use of false keys. 4 This appears to bear out clearly that fniud as such is not deemed equivalent to force or violence in that law ; and it is significant that us regards theft from uninhabited places, entrance by no sort of fraud whatever is treated as an aggrava- tion of theft. 5 * Art. 393. I * S 8 . 431 & 432. 8 Italian P. C., Art. 404. 8 S. 433. 304 CONSENT OF INCOMPETENT PERSON IN CRIMINAL LAW. [g. 145. CHAPTER VIII. SUBJECTIVE QUALIFICATIONS OF CONSENT. 145. It has been explained above in S. 14, that for actual Consent of incompe- consent it is necessary that the person tent person is not suffi- consenting should have a knowledge of cient consent in criminal the act consented to. However, a know- law * ledge of the tendencies or consequences of the act, and as pointed in SS. 20 and 21 even of its character and non-essential constituents is not necessary for the existence of the consent. This is due quite as much to the nature of consent, as to the practical necessities of society. If there could be no consent to an act without a knowledge of all its incidents, there would never be any consent at all, as every person consenting to an act might plead absence of his consent to it on the ground that he was not aware of at least some of them. At the same time, it cannot fail to be sometimes hard, that a person who is not able to understand the nature and consequences of an act should be able to give his consent to that act, and thus to bind himself to submit to and suffer all its consequences, without being able to complain of an injury to him, simply because he consented to some act which is the cause, but which could not be known by him to be the caus*^, of that injury. There is a material difference between a case of mere ab- sence of knowledge, and that of an incapacity of it, and tho two cases ought to be dealt with differently in practice. ]n the former case a knowledge of the act and of its essential constituents, including such consequences as may be deemed a part of the act itself, is essential to and sufficient for consent. Mere ignorance of the nature of the act and its other conse- quences will not affect the existence of consent or even vitiate consent in any way, because if a person com- petent to know them gives his consent without a knowledge thereof, he has only to blame himself. Ib is otherwise, however, with persons incapable of knowing them, and therefore of judging the effect of the act on their own interests. It is necessary that such persons, incompetent and unable to understand the nature and consequences of their acts, and therefore unable to protect their interests, should be protected by law ; and there can be no efficient protection if S. 145.] SUBJECTIVE DISQUALIFICATIONS OF CONSENT. 395 they may throw it off at their pleasure by giving consent to acts prejudicial to them. If they are to be protected, protection rnu.st be given to them against their own consent, and by an absolute deprivation of the consent of all its legal efficacy and effect. This is admitted by all the jurists. Thus Breithaupt in his work on Volenti non fit injuria? says, that consent being a declaration of will, it is necessary that the person giving it nach aUctemein rechtlichen Grunds'dtzen fdhiq isL seinen Willen / / / * recJitlich wirksam auszudrucken. (a) The practical difficulty in such cases is that the incompeten- cy is not always absolute and permanent. The case of minority does not admit of much variation, but nnsonndness of intellect may vary from congenital idiocy to a voluntary tipsiness of an after-dinner whisky, and to extend the same rule to both with all its intermediate sU-.ges cannot but lead to confusion and harshness in practice. It is only gradually that this truth was recognized in England in regard to minors in cases of rape against the rigidity of the common law doctrine of the full effect of consent. The consent of the insane is in England and portions of the United States, sometimes still considered even in those cases, a consent sufficient for purposes of criminal law. In certain other portions of the United States sufficient protection is accorded to the insane, and insanity recognized as sufficient to vitiate consent. The rule has sometimes been enunciated in general terms in countries governed by the English law. A material development effected in regard to consent in the Indian Penal Code is the recognition of this principle in its broadest form, and the extension of these sub- jective disqualifications of consent to all offences alike. Thus S. 90 of the Code provides that if the consent is, in any case, of a person unable to understand the nature and con- sequences of the act consented to, it will not be consent. Some writers mention infancy and unsoundness of mind as absolute grounds of incapacity, and distinguish them from the relative grounds, as an instance of which reference is made to the absence of a free power of disposition over a property in a person who consents to an injury to that property . (6) This is, (a) According to general legal principles is competent to express his will with legal efficacy. (6) Thus Breithaupt, in his work on Volenti non Jit injtiriaj says : "Kswiirde also n'wlttmir flu ubtolut WillentttnfdhigW wie cni iitfans vnd fin furioxits. xoiidcrti an eh e'ui n-latir unftihiyer, trie ~. It. chi tfichteigenlhifmtr, niclit im xfa-ivie ft fin. seine Linwilli^ung in (lie Ve dea bttrfffenden Gut ex. fiber dus ihm nicJit die f re if- Verfiiyung zusteht, tu frthtilcn. c r. 10. | ? P. 19. 3Q5 MINOR'S CONSENT IN RAPE IN ENGLISH LAW. [8. 116 however, not a ground of incapacity of consent, but merely the absence of a condition necessary for the effectiveness of consent ; because, as explained above in S. 107, consent to an act affect- ing property can receive effect only when it is given by a person who will be prejudicially affected by the act, and it is only a person having free power of disposition over the pro- perty who can be so affected. 146. [Jnder the English common law, it was a general rule that the age of the person paving Statutory protection of tne congent was immaterial in regard to minors m regard to rape ,, , -, , , f , 1 in English law the * e o^ enect oi consent, and a consent even by a child was held sufficient to negative offences of which absence of consent was an essential constituent. In regard to rape, however, it was recognized by an early statute (Westm. 1, c. 33), that ravishing a maiden within age was rape even when done with her consent, and a maiden up to twelve years of age was judicially held to be within age. Under the statute 18 Eliz. c. 7, a girl under ten years was conclusively presumed to be incapable of consent, and it was rape to have carnal knowledge of her even with her consent. This latter statute did not include females between ten and twelve years, and it was held not to repeal that part of the statute of AVestminster which had created the offence in regard to them, and which continued to apply to the case of sexual intercourse with them. The effect of the two statutes read together was to make it an offence to have carnal knowledge of a girl under twelve years of age; a felony if she was under ten ; and a misdemeanour, according to the generally accepted view, if she was over ten but under twelve. The Statute George IV., c. 31, s. 17, made it a felony to have carnal knowledge of female children under twelve years of age, even with their consent. The Statute of 1861 (24 & 25 Viet., c. 100) provided separately for the punishment of persons who should unlawfully and carnally know and abuse any girl, making the offence a felony it the girl should be under the age of ten years, and a misdemeanour if the girl should be above the age of ten years and under twelve years. In 1875 the maximum age for felony was raised to twelve years, and that for misdemeanour to thirteen years 9 ' 9 ; and s, o 38 & 39 Viot. c. 94, ss. 3 & 4. S 147.] SUBSTITUTION OF MINORITY FOR FORCE IN RAPE. they have since been raised again to 13 and 16 years respectively. 10 AU this legislation was based on the presumption, that a female of tender years was incapable of consenting bo sexual intercourse, and whether the charge was the crime denounced by the statute of Elizabeth, or the offence defined by the statute of Westminster and not covered by the later statutes, or that punishable under the later statutes, the presumption was conclusive that the act was against her will. Nor was this presumption of force arbitrary. It was based upon a well- understood fact in nature, that a female at that tender age could not have a desire for such intercourse. Nature, indeed, does not definitely fix the period at which she. may become capable of understanding the character of the act and assenting to it ; and positive law has therefore named a certain age in most countries as the period when the conclusive presumption of the opposing will shall cease. A rape, however, is a very serious offence, and for the greater and more effective protection of young girls from the wiles of the cunning, a special and less heinous offence was created in England, which avoided altogether the difficulty and the iriadvisability of treating as rape an offence which, though deserving of punishment, was not really a rape. 147. In this legislation for the protection of minors, the necessity of force generally recognized Substitution of mm- f dispensed with in regard onty for force HI rape. . ^ . ,. r . . ,. to girls within age ; its place being supplied by the tender years of the minor against whom the offence was committed. Thus in Re) Besides physical or moral violence, there may be presumed or inductive (vio- lence), which takes place when the passive subject may in himself be incapable of consent, cither on account of his age or unsoundness of mind. (") In the imputation of carnal violence, the intervention of presumed violence ought to lead to a repression equal to that which real (violence) would deserve. (d) And this is well-founded, because the abuse of him who is deprived of the con- sciousness of his own acts includes in itself besides the attempt on personal liberty and modesty, an element of imputability just as grave, consisting of a brutal and savage venting of lasciviousness on the person of one who inspires compassion or respect owing to the purity of his age. 14 IV. 405. I lr > Art. 1110. MINOR'S CONSENT NOT CONSENT. [8. ISO. the rule is the same as it stood in India prior to 1891. Generally the maximum age up to which the woman's consent does not avoid rape is that now recognized in India. 17 In some of the States, as in Iowa, the limit is the same as now in England. In Michigan and Missouri it is fourteen years, in Nebraska fifteen, and in Kansas even eighteen years. The New York Penal Code 18 provides that a person who per- petrates an act of sexual intercourse with a female (not his wife) under the age of eighteen years under circumstances not amounting to rape in the first degree is guilty of rape in the second degree. 150. It is in fact now considered a general principle that Minor's consent to wneu the female is of such tender years, sexual intercourse gene- as not to understand the nature of the rally held not to be act, she cannot consent to carnal inter- consent - course. In State v. Tilman, 19 it was held that carnal intercourse with a female under twelve years of age would amount to the crime of rape ; as on the basis of general principles, she must be deemed incapable of yielding consent ; and the decision was followed in State v. Miller. In Goates v. State? 1 Cockrill, C. J., in delivering the opinion of the Supreme Court of Arkansas, said: ''If a female be an adult, but incapable of consent to carnal intercourse from idiocy, or a drug administered to her, the act is said to be forcible and against her will. The analogy of the law extends the rule to the condition of an infant whose tender years, or exceptional want of mental arid physical development where her age is sufficient, renders her incapable of understanding the nature of the act." 23 If a prosecutor is not entitled to presume a child's capacity where the child is charged with an offence, there appears to be still greater reason why a defendant should not be permitted to assume it for the purpose of justifying his own vicious act. To hold that a consent extorted from the weakness of children would justify acts perhaps destructive eventually to them, and highly prejudicial to the well-being of society, would be a doctrine of most dangerous tendency. 17 Missouri Ten al Code, S. 345. I 8 i 50 Ark., 330. * S. 278 (5). a Dawson r. State, 29 Ark., 116. 9 80 I,a. Ann., 1249. Anst-hioks v. State, (i Tex. A pp., 20 42 La. Ann., 118(i. 5^4. 8. 151.] MINOR'S CONSENT NOT CONSENT. 151. In England a similar provision was made by Statute 24 & 25 Viet. c. HO, in regard to the Minor's consent imma- attempt of the offence of having carnal tenal m case of attempt knowled of minors . S. 52 of the Act to have carnal knowledge . , . . _ of minors. provided for the punishment ot such an attempt on a girl under twelve years of age. The Criminal Law Amendment Act, 1885, raised that age to thirteen, or, so far as attempt is concerned, to sixteen years. S. 4 of the Act, 23 after making it a felony to have unlawful carnal knowledge of any girl under the age of thirteen years, makes it a misdemeanour to attempt the same. S. 5 of the Act goes still further, and declares a person guilty of misdemeanour " who unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years." There is no express mention in these sections, that the attempt is independent of her consent, but the general language of the section must have that effect, specially as consent is not inconsistent with unlawful carnal knowledge, and there may be an attempt to know carnally a consenting girl, though under Common law there could not be an assault on a girl who consented to the same. D In the United States?, as in India, there is no special provi- sion for a penal attempt in such cases as there is in England. There appears to be no doubt, however, that where the inter- course with a girl is rape even though the intercourse is with her consent, an attempt at such intercourse with her consent will be an attempt to commit the offence of rape. In India there can be no difficulty on account of the general provision in S. 90 of the Indian Penal Code, which provides that a consent is not such a consent as is intended by any section of that Code, if it is given, unless the contrary appears from the con- text, by a person who is under twelve years of age, as nothing appears to the contrary from the context in regard to an attempt to commit rape. In the United States, it has, as a fact, often been held on general principles, that as the consent of a woman under twelve years of age is immaterial for the offence of rape, there may also be an attempt to commit rape on a woman below that age even when she consent. 21 a 48 & 49 Viet., c. 69. I 2 * State r. Piokctt, 11 Nev., 365. People r. McDonald, 9 Mioh., 150. MINOB'S CONSENT IN COMMON LAW. [S. 152. 352. Under the English common law, consent by a Minors consent, ac- min . or to aa "Decent assault was 'held cording to common law, sufficient to excuse its criminality ; and avoids the criminality there could be no indecent assault on a of an indecent assault. m i nor , when the minor consented to it. This was, of course, a natural result of the fact that the absence of consent was the very gist of all assault ; and there was no restriction as to the age of the person giving the consent to negative the criminality of the assault. (a) Thus in Reg. v. Martin,-' 1 a girl above ten and under twelve years of age was assaulted with intent to commit rape, and on a case reserved, fifteen judges held that the offence of assault had not been committed on account of her consent ; Patteson, J., in delivering their judgment, observing that " as the child consented it was not an assault." The court directed in this case that the indictment must be for an attempt; and that was quashed, 28 but only on the ground of a verbal defect, and with an express observation that the indictment, if properly worded, would have been sustained. This decision was followed in Reg. v. Read in which the girl, who after some expression of unwillingness, ceased to offer opposition, and apparently assented, was nine years of age, and from her tender years did not know what she was about; yet her actual consent was held to negative the offence of assault by three boys who had connection with her one after the other, even though it was admitted that she could not give legal consent. This decision was, in its turn, held conclusive in Reg. v. Roadley in which the consent of a girl of seven years was held to negative a charge of indecent assault. In Rstj. v. Cockburnf 1 the girl was under five years of age, and Patteson, J., said : " A child under ten years of age cannot give consent to any criminal intercourse, so as to (a) In If eg. v. Banks** the charge was of a felonious assault on a girl nine years old, and Patteson. J., observed that he had "great difficulty in saying that there was any assault, as there was consent.'* In Rrg. v. Meredith,' 1 * a charge of an assault on a girl between the age of ten and twelve was not sustained, aud Lord Abiiiger observed that to support it, ''you must show an assault, which could not be justified if an action were brought for it, and leave and license pleaded.'' 9 8 Car. & P., 574. *8 8 Car. &P., 589. 2 ? 'J Car. & T., 213. 3 Cox. C. C., 513. 2S 9 Car. & P., 215. 2 3 Cox. C. C., 267. |, *> ICG Cal.,r:il. MINOR'S CONSENT IN COMMON LAW. [g. 153. the law, there can be no consent. Here the law implies inca- pacity to give consent, and this implication is conclusive. In such case the female is to be regarded as resisting, no matter what the actual state of her mind may be at the time. The law resists for her." The same has been held again by the court in People v. Laurintzf* in which a conviction of an assault with intent to commit rape on the person of a young girl who had assented to it, was sustained. Apart from the indications of any special legislation, however, though there may be an attempt to commit rape even as against any consenting female, there can be no assault with intent to commit rape against a female below twelve years of age. Thus Bishop in his work on Statutory Crimes,* 5 says, that " by the better judicial determinations, there cannot be, under the common law rules, an assault with intent to have criminal carnal knowledge of a girl with her consent ; because, by the common law, violence consented to is not an assault, and the statute which makes her consent immaterial in defence of the carnal knowledge does not extend also to the assault. Some of our American courts, without express statu- tory aid, have held that the girl's legal incapacity to consent to the carnal act extends also to render her incapable of con- senting to the violence which, in the absence of her consent, would by all be deemed to constitute an indecent assault. So that, by these opinions, there may be a conviction for assault with intent to commit carnal abuse. Still, though, by what we have seen to be the better doctrine, the law does not term this act an assault by reason of the girl's consent But in a State where there are no common law crimes, it is not so indictable; and, in the absence of a statute to meet the case, the offender must escape." 153, Special legislation was, therefore, resorted to with a view to provide punishment for the act Special legislation to of an indecent assault against a child make indecent assault j ncompe tent to consent, the legislation against minors an , . " r i offence iu spite of bein g base(1 on . a presumption of law as consent. to public policy, which was at times recognized even on general principles, and which was the basis of the extension of the doctrine of the constructive force in such cases so as to constitute intercourse with a child the offence of rape. ** 45 Pac. R , 613. I * SS. 49C-199. S. M3 j MINOR'S CONSENT IN COMMON LAW. 3^7 Thus in England, it was enacted by the Criminal Law Amendment Act, 1880, 40 that it 4i would be no defence to a charge or indictment for an indecent assault on a young person under the age of thirteen years to prove that he or she con- sented to the act of indecency." And a Bill was introduced into the House of Lords even last year to raise the limit of age for making such assaults criminal, independently of consent, up to the age of 16 years. That Act did not apply, how- ever, to Scotland, where it. is doubtful whether the consent of a minor would be able to negative the offence of indecent assault on her. 47 Some of the States in the American Union have also enacted statutes more or less similar. Thus S. 245 of the Minnesota Penal Code declares guilty of felony "a person who takes any indecent liberties with or on the person of any female, not a public prostitute, without her consent expressly given and which acts do not in law amount to a rape, an attempt to commit a rape or an assault with intent to commit a rape, or any person who takes such indecent liberties with or on the person of any female child under the age of ten years, with- out regard to whether she consents to the same or not. And in State v. West, 48 Mitchell, J., said : " The taking of indecent liberties' with the person of a female with- out her consent would at common law amount to an assault. In view of the aggravated nature of such an assault, the evi- dent intention of the legislature was to raise it from the rank of misdemeanour to that of felony, so that it might be more severely punished. And as by another statute a female under the age of ten years was incapable of consenting to carnal intercourse, or at least her consent void, so by this section the incipient advances, in the way of indecent liberties with her person, are placed on the same footing as the principal crime. What in the case of a female over the age of ten would amount to an assault because done without her consent, would, in the case of a child under that age, in any case, be an assault, because she is deemed incapable of consent, and there- fore the act must, in contemplation of law, be deemed as done without her consent. If an indictment charged a defen- dant with taking indecent liberties with the person of a female under ten years, with intent to carnally know and abuse her, * 43 & 41 Viet. c.45. | * M' Arthur Shaw, 211. * 39 Minn.. 321. LIMIT OP THE AGE OF CONSENT. [S. 154. we think clearly this would amount to a charge of an assault with the intent alleged. If so, then it would seem to follow that, under an indictment for an assault with intent to car- nally know and abuse her, the defendant might be convicted of taking indecent liberties with or on her person, if within the allegations of the indictment." In the French law also, the Code Penal of 1810 provided only for the punishment of the assault against the modesty when it was committed with violence, what- ever might be the age of the person assaulted ; so that whenever it was found that an infant had not made any resistance or had actually given consent, the act of at ten tat re- mained unpunished. The courts revolting at the impunity of so grave an offence, attempted in some cases, to strain the law so as to include within it such an assault, sous pretexte gii'il avait violence morale. The Court of Cassation held, hxnvever, that Art. 331 of the Code which dealt with the matter applied to physical violence only and not to moral violence ; 4J and it was difficult to make up the gap thus created in the law by a Praetorian interpretation. 50 In 1832 a new disposition was therefore introduced into the Code, which, as subsequently amended in 1863, provides the punishment of reclusion for tout attentat a la pudeur consomme ou tente sans violence sur la personne d?un enfant de Vun ou de Vautre sexe dgi de moins de treize ans. (a) The effect of this disposition is to establish an age under which violence is presumed always in case of an assault on the person of infants. 1 The same penalty was provided also for an attempt against the modesty committed by an ascendant over the person of a minor of more than thirteen years of age, but not eman- cipated by marriage. 154. The limit of age for the nullity of consent must, of course, be arbitrary, and is, therefore, dif- Liimt of the age of r i-/v> ._: -\T j eoilsent ferent m different countries. JNor need the age of consent for the purpose of Criminal law be the same as for civil transactions. Breit- haupt in his work on Volenti non fit injuria, 2 thus points out i(]m des burgerlichen Rechtes ilber die Handlungs- (c) Every attempt against modesty, committed or attempted, without violence on the person of a child of one or the other sex, of less than thirteen years of .I.LTO. 49 1R30 Journ.du dr. Crim.. 353. I 1 IV. Gar. Dr. Pen.. 475. 50 IV. Gar. .Dr. I en., 474. H r . Adulph. fc H.'lic, 236. 2 P. 20. g. 154.] LIMIT OF THE AGE OF CONSENT. fdhi STATES. [g: l6v of insane delusion of some years' standing^ unconnected with anything relating to matters of that kind. The jury were charged, that if they were satisfied that she was ot unsound mind, with no moral perceptions of right and wrong, that her acts were not controlled by the will, and were, in fact, in- voluntary,, she could not be said to be capable of consent,, and from her state of mind and impotence of will, the yielding on her part to force ought not to be taken as an act done with her will. They found, however, that she was insane, but had consented to the assault. The conviction was quashed, as on a charge of an assault with intent to ravish, it would seem, on the decided cases, to be impossible to support a conviction where consent is found. "In the case of the idiot, the Innatic, the drunken, or insensible,'* continued Hagarty, J., " the crime can only be complete an the actual or legal deduction that the connection took place without consent." 156. Substantially the same, but a somewhat stricter, viett is taken of the effect of idiocy on consent Effect of idiocy on 5n tfae ^j^ ^^ TJ Dr> Bishop consent in the United , . . * i - , n .\ gtates. says: *' A woman with less intellect than is required to make a contract may so consent to a carnal connection that it will not be rope. But where the idiocy is so profound as absolutely to incapacitate her to consent or dissent, the man who penetrates her, not supposing he has her consent, commits this crime/' lf This was cited with approval in MeQuirk v. State 1 * by Somerville, J., who, in delivering the opinion of the Supreme Court of Alabama, said: "The mere fact that a woman is weak-minded does not disable or debar her from consenting to the act.** In State v. Atherton, 19 Adams, J., in delivering the opinion of the Su- preme Court of Iowa, incidentally observed, however; "We are inclined to think that If the prosecutrix was so destitute of mine! that she was incapable of consent, the defendant was guilty of rape.'* In Crossu-ellv* People the intercourse was with a woman of good size and strength, under dementia, and though not idiotic, yet approaching towards it, and there were facts from \vhich the jury might infer that she, and not the prisoner, \vus the solicit* ing party ; and it was held not to be rape, if she consented. It was urged that all intercourse with a woman in that condition must be rape, because she has no capacity to consent, and 1 A h - ^: ' "> C4 i. 1 9 50 Iowa, 189. 'o 13 Mia/., 427. S. 157.] EXTENSION OF RULES CONCERNING MINORS TO THE INSANE. 325 that an insane woman, or one not mentally competent to exercise an intelligent will, is in the same position as respects this crime as a child under ten years of ae, and that carnal knowledge of her person would constitute the offence, notwithstanding her acquiescence. This contention was overruled however, and the decision proceeded on the ground that for rape it was necessary in the State, under a special statute, as in England, that it should be committed by force and against the woman's will, and that the same circumstances must exist to constitute rape in the case of an idiot or insane woman as where the woman was of sound mind. Cooley, J., in delivering the opinion of the Court, admitted, that " though the definition of the offence implies the existence of a will in the woman which has opposed the carnal knowledge* no violence is done to the law by holding, in any case where the woman, from absence of mental action, does not willingly acquiesce, that the physical force necessary to effectuate the purpose, however slight, is against her will." The admission could, however, not affect the decision in that case, where the will was active, though perverted, and all idea offeree or want of willingness was distinctly disproved. Recently in State v. Enright* 1 it has been held by the Supreme Court of Iowa, that for a man knowingly to have criminal intercourse with a woman of intellect thus impaired is no doubt peculiarly wrongful ; yet if she be capable of consenting, and does consent, it is not rape. In State v. Crow a person was charged with the crime of rape committed upon an insane woman. It was contended that intercourse with her, even by force, could not be rape, because she had no will to oppose. The court after explaining that in idiocy and lunacy, there is no lack of will but a weak- ness and perversion of it, said that he had " no hesitation iu holding that both idiots and insane persons are possessed of a will, so that it may be legally and metaphysically said that a carnal knowledge may be had of their persons forcibly and against their will.*' 157. It has been attempted in some cases to extend the Attempted extension rules concerning minors by analogy by analogy of rules con- to persons of unsound mind. The earning minors to per- attempt has, however, not succeeded. sons of unsound mind. jhe Court of Criminal Appeal in Reg. v. 58 N, W. Rep ,901. | 10 Weet, L. J., SOU 32C EXTENSION OF RULES CONCERNING MINORS TO THE INSANE. [8. 157, Charles Fletcher in fact, argued to the contrary. Pollock, C. B., after referring to the special legislation for the protection of minors as having a tendency to throw light upon the case relating to the insane, said that, to secure conviction of a person having sexual intercourse with an insane female, " the contention on the part of the Crown must be that an idiot is incapable of consent, but it may be said in answer that the same cause which required an Act of Parliament to make the mere fact of connection a criminal offence in the case of children of tender years would require an Act of Parlia- ment in the case also of idiots." In Reg. v. Sweenie, Lord Neaves, after observing that in the case of a child the law in- troduces a constructive violence, remarked that '* in the case of an insane woman constructive force may also be admitted upon an extension of the same principle, the law not allowing that such a person can exercise the will." Lord Deas likewise, after referring to the principle concerning children, remarked that " it may be that idiots fall within the same principle," expressly excepting " insane persons who are not idiots, whose cases may depend on their own circumstances and on degree." These remarks were quite ultra vires, and were not even noticed by the other Judges. The case was concerning a sleeping woman, and it is a strong authority against the analo- gical extension of statutory priniciples to cases not covered by them. Even Lord Deas observed, that it did not " follow that because an exception is made of cases in which by law, or both by law and nature, the parties are totally disqualified from consenting, an exception shall equally be made of the case of a woman who might have consented if awake, although she neither did nor could consent, being asleep." Lord Cowan, after expressing his concurrence with the principles on which the ravishing of children, and of insane persons has been held equally criminal with rape committed on a grown-up person, observed that he did not '* think that the principle of that class of cases can safely be extended by analogy to other and different cases." The question has come directly before the courts in France, where also, as in English common law, the committing of an abuse on an insane female is held not to be rape on the ground that there is no violence in such a case. 24 The Ghambre du Gonseil of the tribunal of Seine held in a case that such an act should at least be held to be an assault against the modesty of the woman on " 10 Cox. C. C., 248. I a* IV Adolph. and HY-lie, 319. 8. 158.] LEGISLATION FOR PROTECTION OF THE INSANE. 327 the analogy of that offence as against a consenting minor punishable under Art. 331 of Code Penal. The Chamber of Accusation of the Court of Paris, however, on 1st August 1835 rejected that interpretation, and said, que vouloir appliquer au cas d'imbecillite le principe qui declare punissable Vattentat commis sans violence sur Vindividu age de mains de onze ans, ce serait proceder par analogic d'un cas prevu a cdui non prevu, ce qui est inadmissible en mature penale; re serait livrer r appli- cation de la loi a une appreciation de Vetat moral de la victime, ce qui conduirait a Varbitraire ; et enfin ce serait punir d'un crime que le coupable pourrait avoir commis sans le savoir, car les signes de la faiblesse d 'esprit ne sont pas apparents toujours et pour tous. (h} 158. The doctrine was carried so far, that a consent to sexual intercourse produced by mere Statutory legislation am ' ma ] instinct was sometimes considered insane. sufficient to prevent the intercourse from being rape. This was expressly charged to the jury in Reg. v, Charles Fletcher? 5 In Reg. v. Connolly Hagarty, J., in delivering the judgment of the Court of Queen's Bench in Upper Canada, after a review of the principal cases on the point, stated it as their result , " that if she gave her consent from animal instinct, or passion, it would not be rape," and added : " In the principal offence, consent from mere animal instinct has been held to be a defence in the case of an idiot. It is impossible to say that it must not be equally so in the lesser charge of assault with intent, and equally impossible when a consent in fact is proved." With the general advance in favour of this unfortunate class of the people who have lost their intellect, this view is meeting with rather a strong disapproval in present times. Thus, in the Irish case of Reg. v. Dee, 27 Palles, C. B., observed that " consent is the act of man, in his character of* a rational and intelligent being, not in that of an animal. It must proceed from the will, not when such will is acting without the control of (h) That to wish to apply to the case of the imbecility (of miml), the principle on which an assault without violence against an individual of less than eleven years of age has been made punishable, would be to proceed by analogy from a case provided (by law) to that not provided, which is not allowed in penal matters ; it would bo to leave the application of the law to an appreciation of the moral condition of the victim, which would lead to arbitrariness ; and finally it would be to punish as a crime what the offender might have committed without knowing, as the signs of the weakness of intellect are not apparent always and to all persons. 35 10 Cox C. C., 248. | 2 8 26 U. C. Q. B., 317, 15 Cox C, C., 593. 328 LEGISLATION FOR PROTECTION OF THE INSANE. [8. iS8. reason, as in idiocy or drunkenness, but from the will suffi- ciently enlightened by the intellect to make such consent the act of a reasoning being.' 1 " Nothing is, in my opinion," he continued, " too elementary to encounter a doctrine so abhorrent to our best feelings, and so discreditable, to any jurisprudence in which it may succeed in obtaining a place, as that which, more than once, was laid down in England that a consent proluced in an idiot by mere animal in- stinct is sufficient to deprive an act of the character of rape." The Indian law, as pointed out by Mr. Mayne in his work on the Criminal Law of India, 23 is not satisfied without *' the in- telligent consent of a woman who is able to understand not only the nature, but the consequences of the act. An idiot may be as capable of assenting to sexual intercourse as any other female animal. But it is evident that the nature and conse- quences of illicit intercourse with a woman, are very different from what they would be in the case of a cow. It is precisely this difference which the Indian law requires that she should be able to understand, and understanding it, still to consent/* Even in England and portions of the United States, special legislation has been undertaken for the protection of the insane on lines similar to that for minors. Thus S. 5 of the Criminal Law Amendment Act, 1885, providing for the punishment of carnal knowledge with minor girls, further enacts that any person who unlawfully and carnally knows, or attempts to have unlawful carnal knowledge of any female idiot or imbecile woman or girl, under circumstances which do not amount to rape, but which prove that the offender knew at the time of the commission of the offence that the woman or girl was an idiot or imbecile, shall be guilty of misdemeanor. The statutes of some of the States go still further and actually lay down a rule even independent of the offender's knowledge of the condition of the female. Thus, the New York Penal Code provides that sexual intercourse with a woman is rape when, through idiocy, imbecility, or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent. The California Penal Code makes a similar provision *' where she is incapable, through lunacy, or any other unsoundness of mind, whether temporary or permanent, of giving legal consent." These rules are virtually, so far as unsoundness of mind is concerned, identical with the rule enacted in the Indian Penal Code. 8 P. 398. S, 159.] INTOXICATION AS VITIATING CAUSE CONSENT. 339 159. Intoxication also, as regards the adequacy of a person's consent is often placed on Intoxication as a vitiat- the same footing with uusoundness ing cause of consent. of mind. Thus Mr. Blackburn, in an article in the " Criminal Law Magazine," after giving several definitions of rape says, that under all of them, "the act of sexual intercourse with a woman who was intoxicated to such an extent that she could not resist and could not consent, and, in fact, would not know that her person was being defiled, would be without her conscious permission, and, as a natural sequence, would be rape." 29 So also in McQmrk v. State,* Somerville, J., in delivering the opinion of the court, observed, that, *'if the woman is mentally unconscious from drink, or sleep, or from other cause, is in a state of stupefaction, so that the act of the un- lawful carnal knowledge on the part of the man was com- mitted without her conscious and voluntary permission, the idea of force is necessarily involved in the wrongful act itself." And in the nature of things there is no difference between a person who is not able on account of intoxication to under- stand the nature and consequences of what he consents to, and another person unable to do so on account of the unsound- ness of mind. If consent in the case of the latter is inade- quate, it must be held inadequate even when given by an intoxicated person. Though intoxication is like unsound- ness of mind as regards the condition of the mind at any particular time, it differs from it essentially in being a voluntary condition, which a person can assume at any time at his option for any short period, while insanity is for all prac- tical purposes a permanent condition beyond one's con- trol. A plea that a consent is void on account of being given by a person under intoxication will always be most easy to establish and rather difficult to rebut. A woman may even deliberately intoxicate herself to the necessary extent with a view to retain an opportunity of prosecuting in certain contingencies her successful paramour for rape. At the same time, there are, no doubt, cases in which law must extend its protection to an intoxicated person as to an insane. * XIII, 510. | 9 * 84 Ala., 435. 42 330 CAUSING INTOXICATION EQUAL TO FORCE. [S. 160. 160. It is settled, even in the English law, that when Cansing intoxication the intoxication is not voluntary, but has in order to get consent been caused by the offender himself with is equivalent to force a view to get the consent to do the act in English law. he desires to l. 33 Art. 1HO. 332 EFFECT OF CAUSING INTOXICATION IN ITALY. [8. 161 . sarebbe movimmto alamo di forze meccaniche eostrimjenti it corpo, il qufile sarebbe concorso col seduttore alfazione per impulso proprio, senza che questi abbia esercitato abuso di forza morale costringente Vanimo della vittima. M He adds that it is a general rule, that when such fraudulent means are employed as to leave no freedom of consent, torni lo stesso come sia stata la viitima maliziosamsnte pasta nelV- impossibilUa di resistere, (}y which is the essence of the offence of rape, the responsibility delVagente dev'essere uguale a quella in cui sarebbe incorso se avesse usato una violenza V3ra.^ 80 also Franceso Carrara says that there is violence when au act is done to a person in sleep or intoxication, and there is sure proof of dissent, even though there is no prior express declaration of consent, -observing that in the abuse of 35 della ebra e della dormiente vi e il dissenso, vi e la forza meccanica che comprime il corpo e rende inerte la volonta ; e vi e ndV- uomo impudico il dolu speciale della violenza, poiche quclle forze egli pone al servigio del suo criminoso disegno. (l) It is on the ground of this want of dissent that he distin- guishes the case of such person from that of the insane and the minor, in which case he says there is even no presump- tive violence, the violence being wanting in all objectivity as there is no contrary will, and in all subjectivity, as there is non trovandosi una forza ne meccanicfi ne morale adoperata a soygiogare la ipotetica avversione della paziente. 38 (m) (i) People in general agree in recognizing the limits of true violence, when there are sure proofs of her dissent, either owing to the positive proof of preceding repulses, or of subsequent affirmabiona to the effect that if she had been master of herself as regards the fulness of her intention she would not have consented in any way ; or when the intoxica- tion or stupor may have been maliciously procured by the person acting. If this cannot be proved there might be deceit a seduction, in the abuse by the acting party, but there would be no movement of physical force constraining the body which would concur with the seducer ia the act through its own impulse without his having exercised any abuse of mor: 1 force constraining the mind of the victim. (;') the same takes place, as if the victim had been maliciously placed in a state in which resistance was impossible. (k) of the doer ought to bs that which would have been incurred if he had used real violence. (I) the intoxicated and sleeping person, there is a dissent, there is a mechanical force which constrains the body and renders the will inert ; and there is iu the wanton man, the djlus peculiar to violence, because ht> places these forces at the service of his criminal design. (ni) not found a force neither mechanical nor rnrral, adopted to subjugate the suppos- ed aversion of the person to whom the aot is done. 3 * Criv. Dir. Pen., Art. 1UO. | f;.rr. I'rojj., Art. HOD. 30 Curr. Prog-, Art. 1515. 8. 161.] EFFECT OF CAUSING INTOXICATION IN FRANCE. 333 Aclolplie and Helie in their work on the Theory of Code Penal, refer to the case 37 in which V attentat had been com- mitted during sleep fraudulently procured by the aid of narcotic drugs, and say la violence n'est-elle pas dans cette machination infdine qui lime la victime sans qu'ettz puisse se defendre, dans ces moyens criminels qui V enchainent pour la consommation de r attentat, dans ces liens d'un sonimeil lethar- gique qui la tiennent captive f Or, serait-U possibl d'etablir une difference reelle entre ces deux hypotheses ? Dans Vune et dans faatre, la victime n'a point a s'imputer son abandon et sa credidite ; sa volonte, sa force out ete enchainees ; et qu'importe que ce soit par une machination crimineilemsnt con- que, par la violence des drogues perjidement preparees, ou par la violence physique de I' agent ? L'attentat n'est-il pas meme plus atroce, puisqulil revele une combinaison plus froide et plus calculee ? Peut-on objector que la viohnce ne s'exerce pas au moment meme de V attentat ? Mais cette violence dure autant que Verreur, autant que le sommeil frauduleusemmt procure. Lors- qe la fille enlevee s'evanouit dans les bras de son ravisseur, et qu'il projite de ce moment pour consommer le viol, pourrait-on soutenir qu'il l*a commis sans violence f Si le crime est commis sous Vimpression de menaces de mort, rnais sans aucune violence physique, soutiendraiton qiCil n'y a pas eu de viol parc3 qu'il n'y a pas eu de resistance ? Si cette resistance a ete rendue im- possible, ne faut-il pas necessaireraent remonter aux actes qui font enchamee ? (n) This opinion 1ms been confirmed by two arrets which in exactly the same circumstances have decided that the act of committing abuse on a female while asleep and against her will constitutes rape. 38 The grounds of these arrets are: (?i) Is not there violence in this base contrivance which delivers up the victim without her having the power to defend herself, in these criminal means which enchain her for the consummation of the attempt, in these bonds of a lethargic sleep whioh hold her captive ? Now, would it be possible to establish a real difference between these two hypotheses ? In one as well as in the other, the victim has not to blame herself for her confidence and her credulity ; her will, her force have been euohained ; and what does it matter whether this is done by a criminally conceived contrivance, by the vi lenoc of perfi- diously prepared drugs, or by the physical violence of the doer ? Is not the assault even more atrocious, since it reveals a combination more cold and more calculated ? Can one object that the violence is not exercised at the moment of the assault itself ? But this violence lasts as long as the error, as long as the sleep fraudulently procured. When the girl rises, she faints in the arms of her ravisher, and does it profit at that moment to consummate the rape, that one can maintain that he has committed it without violence? If the crime is committed under the impression of mennoes of theft, but without any physical violence, would it be maintained that there was no rape, as there was no resistance ? If this resistance has been rendered impossible, is it not necessary to trace it to acts which have prevented it ? 3 > IV., 318. | as iv. Adolph. aud Helie, 319. 334 SEXUAL INTERCOURSE BY DKUGGING KOI 1 RAPE. [S. 162. que le crime de viol n'etant pas defini par la loi. il appartient au juge de rechercher et constater les elements constitutifs de, ce crime, d'apres son caractere special et la gravite des consequences qu'il peut avoir pour les victimes et pour Chonneur des families ; que ce crime consists dans le- fait d'abuser d'une psrsonne contre sa volonte, soit que le defaut de consentement residte de la viol- ence physique ou morale exerc&s a son egard, soit qu'il resulte de tout autre moyen de contrainte ou de surprise pour atteindre, en dehors de la volonte de la victime, le but que se propose Vauteur de The same view appears to be taken in Germany also. Thus Halschner says : Ein listiges Benehmen, durch icelches jemand in den Zustand des Duldenmilssens versetzt icerde, sei als eine durch " vis absoluta" verubte Nothigung zu betrachten, (f) Olshausen in his Commentary on the German Penal Code, in commenting on para. 240, and observing- that fraud does not operate as compulsion, says: 40 Die Betdubung aber ist eine Art der List und fdllt nicht unter den Begriff der Gewalt. (q} He immediately afterwards adds, however, that das Wesen der Nothigung an sich die Betdubung als Mittel der Nothigung nicht ausschliesst. (r) 162. This treatment of drugging was due, however, to the Sexual intercourse with Requirement of force for the offence of a female by drugging rape. It was mainly on account of the her is not rape, though necessity of punishing with proper sometimes deemed pun- severity the act of sexual intercourse with isnable as such. , -, , , a woman by drugging or intoxicating her, that such drugging or intoxicating was held equivalent to force. Really there is a material distinction between the two; and the offence of such intercourse is of a different gravity from (o) That the crime of rape not being defined by law, it pertains to the judge to make a search for and establish the constituent elements of this crime, in conformity with its special character and the gravity of the consequences which it can have for the victim. and for the honour of the families ; that this crime consists in the act of abusing a person against her will, whether it be that the defect of consent results from violence, physical or moral, exercised in regard to her, or that it results from other means of constraint or surprise for to attain, without the victim's will, the end which _the author of the act pro- poses to himself. (p) An artful conduct through which anybody is put in a state of being obliged to tolerate is to be considered as compulsion exercised through m- (il/nnlxta. (9) Stupefaction, however, is a kind of cunning and does not come under the con- ception of violence. (?') The nature of compulsion does not exclude stupefaction as a means of compulsion. 38 IT. Halschner, 12.: ; 35 Genchtsaal, \ 40 P. G8. S. 162.] SEXUAL INTERCOURSE BY DEUGG1NG NOT RAPE. 335 that of rape, though it was long punished as such in England for want of a special provision for its punishment. Such provision has now been made there, as well as in some of the States of the American Union. Thus the Criminal Law Amendment Act 1885 (48 & 49 Viet. c. 69), s. 3 provides that a person who applies, administers to, or causes to be taken by any woman or girl any drug, matter, or thing, with intent to stupefy or overpower, so as thereby to enable any person to have unlawful carnal connection with such woman or girl shall be guilty of a misdemeanour. In New York also, this is a separate offence provided for in S. 23 of the Penal Code. Referring to that section, Johnson, J., in People v. Quinf 1 said, that it "provides for the punishment of every person who shall have carnal knowledge of any woman above the age of ten years, without her consent, by administering to her any substance, or liquid, which shall produce such stupor, or such imbecility of mind or weakness of body, as to prevent effectual resistance. The punishment prescribed for the offence named in this section, is imprisonment in the State prison not exceeding five years. The punishment for the crime of rape is imprison- ment not less than ten years. Rape, and carnal knowledge of a woman under the circumstances provided for in section twenty-three, are clearly separate and distinct offences. The latter is an offence against the person, but it is not a rape under our statute, and was designedly made a sepa- rate offence, as will appear by a note of the revisers upon this section. After copying this section, as proposed by them, they say : ' The offence committed under the preceding cir- cumstances probably would not be rape ; and yet the guilt of the offence and the injury to the sufferer are as great in this as in any other case/ The provision was borrowed by the revisers from Livingston's Louisiana Code." In People v. Dohring, 42 Folger, J., said: "In this State our statutes make a distinction between a rape and the act of carnal intercourse without her consent with a woman made insensible by the administration of that which produces stupor; and the latter is an offence against the person, but not rape." And if the result is insensibility, it is not material that it was brought on by something administered with a view not to make the woman insensible, but simply to excite her desire. *i 50 Barb., K8. I + 2 59 N. Y., 374. 336 CONSENT OF INTOXICATING PERSON NOT SUFFICIENT. [&. 163. 163. The rule is generally considered to be the same, even , , when the intoxication is not caused with Criminal act done to . . . a person after intoxicat- a view to get the consent to the criminal ing him is not excused act, but for some other purpose ; and by that person's con- advantage is taken of the unconscious condition resulting from that intoxica- tion to do the act to the person intoxicated in that condition. This was the basis of the decision in Tteg. v. Campling in which the prisoner had given liquor to the prosecutrix, and when she became quite drunk and insensible, he took advantage of it and violated her. The jury found that the prisoner gave her liquor for the purpose of exciting her, and not with the intention of rendering her insensible and thus having sexual intercourse with her, yet he was convicted, and the conviction was on a case reserved, upheld, after argument, by fifteen judges. Tn R. v. 8weenie t ** Lord President MacNeill expressed it as his opinion that it was not necessary for that offence, that the inability to remonstrate or resist should have been brought about by an act of the offender, with the design of availing himself of it. " I think," said the learned judge, " it is not so in the case where a rnan takes advantage of the state of insensibility to which a woman has been reduced by his act or contrivance, although in produc- ing the insensibility he may not have harboured that design, or may even have intended something different, as would be the case of a medical man who should take advantage of the inabi- lity to resist produced by opium or chloroform which he had administered for a different purpose to his patient.*' The same has been held in McCue v. Klein, * 5 in which Willie, J., in delivering the opinion of the Supreme Court of Texas, said : " If one whose mental faculties are suspended by intoxication is induced to swallow spirituous liquors to such excess as to endanger his life, the persons taking advantage of his condition of helplessness and mental darkness, and imposing the draught upon him, must answer in damages for the injury that ensue?." Garraud, in his treatise on the French Penal Law, says 4-. <\ C., 198. 43 VITIATING EFFECT OF INTOXICATION ON CONSENT. [8. 165. Tn the United States also, Cooley, J., in delivering the leading opinion of the Court in People v. Crosswell 49 ob- served, that " if a man knowing a woman to be insane, should take advantage of that fact to have knowledge of her person, when her mental powers were so impaired that she was uncon- scious of the nature of the act, or was not a willing participator, we should have no difficulty in holding the act to be rape, not- withstanding distinct proof of opposition might be wanting." In that case, the trial judge had assumed that the naked fact of intercourse, with knowledge of the mental condition, was sufficient. But the court thought that that would be a dangerous proposition. Cooley, J., added : " As one who has knowledge of the facts which prove insanity must be supposed to know that insanity exists, it would follow that, in any case of doubt, a man's guilt or innocence would depend upon the preponderance of testimony on the question of the woman's competency. As marriage with an insane person is void, it might become a serious question whether the ceremony could protect the too partial bridegroom from prosecution for rape, where he had relied upon manifestations which, to him, appeared the evidences of genius, but which experts should convince a jury were only the vagaries of a disordered imagination." The New York Penal Code provides that sexual intercourse with a woman is rape, when her resistance is prevented by stupor, or weakness of mind produced by an intoxicating or narcotic, or anesthetic agent; or when she is known by the de- fendant to be in such state of stupor or weakness of mind from any cause. 50 165. The rule is recognized to its broadest extent in India. Recognition of vitiat- Tnus S '. 90 of tlie I"dian Penal Code ing effect of intoxica- declares in the same words the inade- tion in Indian Penal quacy of the consent given by a person C 0(ie - who, from unsoundness of mind or in- toxication, is unable to know the nature and consequences of that to which he gives his consent. The Code ignores entirely the distinction arising from the circumstance of the intoxication being voluntary or otherwise. The abuses of which the protection of drunken persons against the consequences of their own acts and their own consent is capable, can have no place, where the protection is re- stricted to cases of involuntary intoxication. In regard to * 13 Mich,, 427. | o g. 278 (4). S. 166.] EFFECT OF SPIRITUAL FORCE ON CONSENT. 339 criminal acts, the protection is restricted to those cases by SS. 85 and 86 of the Indian Penal Code, It does not appear why, in regard to consent, the protection given is gene- ral, extending, as it apparently does, even to voluntary intoxi- cation. The Indian Penal Code appears, in fact, to go even still further, and to extend the protection to consent given by a person who is of unsound mind or intoxicated, when the said unsoundness or intoxication is not known to the person acting on the consent ; an extension which does not appear to be expedient or recognized in other countries, and which is rather inconsistent even with the principle recognized in the same section of the Code in regard to the objective disqualifica- tions of consent. In 110 other system of law does the protection appear to extend to cases of consent beyond those in which the intoxication is involuntary, and known to the person acting on it, and it is not seldom restricted to still narrower limits. 163. Even the Indian Penal Code does not refer to the effect of spiritual force on consent. This is no Effect of spiritual force doubton account of the non-recognition by on consent. the Courts and the Legislature in India of the power of spiritualism ; though, ac- cording to the belief of the masses in this country, cases of the exercise of such power are not unknown here. The codes of other countries also are silent on (he subject. Individual cases of the subjugation of will by magnetism have sometimes come before the Courts, and the consent extorted by magnetism has been held to be non-existent. In a case men- tioned in an Italian Journal of the 13th August 1865, the Court of Assize of Var convicted of rape a person who had by acts of magnetism reduced his victim to a state of iinposKibilita^ in which she remained conscious of all that was done on her, but had not force enough to oppose it. The contrary was held, however, by the Supreme Court of Vienna in 1862 in a case 1 in which the woman with whom the connection was had declared that she was not conscious even of the act of connec- tion while it was going on, but came to know of it afterwards by finding herself enciente. The acquittal in this case proceeded chiefly on the ground that science was not sufficiently advan- ced to determine the doctrine of causation and the possible effect of magnetism in such cases. The question is discussed at length in Charpignon's Rapports du magnetisme avec la juris prudence, but need not be further discussed here. 1 Carr. Prog., Art, 1515 () o Q NEGATIVE OPERATION OF CONSENT. [S. 167. CHAPTER IX. OFFENCES INVOLVING ABSENCE or CONSENT AS AN ESSENTIAL CONSTITUENT. 167. Consent operates in criminal law as observed in Chapter I, either negatively or positively., Negative operation of j fc operates ne gativelv by its absence consent in criminal law. . 3 .. , < c being an essential constituent oi an O offence, either on account of the nature of the act constituting the offence, or under some provision of law. In the former case, the act constituting the offence cannot exist, unless there is an absence of consent to it. Thus there can be no wrongful confinement of a person on account of the very nature of the confinement, unless there is an absence of consent on his part to stay in the place of the confinement. Dies ist jedoch so zu verstehen, dass hier die Straflosigkeit nicht deshalb eintritt, well eine an und fur sich durcli das ius publicumfur strafbar erkldrte Handlung trotz ihrer Begehung auf Grund der subjektiven Wil- lensriclitung deg Verletzten als straflos hir.gestellt wird, sondern well der Eigenthiimer des in Frage kommenden Rechtsgutes, dadurch, dass ereinen Eingriff in diese seiner Verfugung gaitz und gar unterstehende Ifeehtssphare yestattet, verhindert, dass iiber- haupt etwas Jteclitswidriges begangen wird. Es findet also hier eine Anwendung des Satzes ( volenti non jit injuria ' uber- haupt nicht statt, sondern die Straflosigkeit ist die Folge des Mangels eines zum Thatbestande des Verb re 'hens wessntlichen Merkmals, namlich der fehlenden Einwilligung ; und durch den Mangel dieses Requisits, d. h. also durch die Einwilligung, icird von der Handlung das Verbrecherische abgestreift. iw In the latter case, the act constituting the offence may exist even when there is consent, but it will acquire its criminal character only from the fact of its being done without the consent of the person affected by it. This is the case, for instance, in regard to the offence of kidnapping, (a) This is, however so to be understood, that the immunity from punishment docs not arite, because an act in itself declared to-be punishable by jus publicum, in spite of its commission is laid down as free from pnnisliment on the ground of the subjective direction of the will of the injured person, but because the possessor of the good (interest) in question by the fact that he permits an attack against a legal sphere entirely subject to his disposal, altogether prevents any illegal aot from being com- mitted. An application of the maxim rolenti non fit injiivla does not at all, there- fore, take place here, but the immunity from punishment is the consequence of the defect of a mark (symptom) essential fur the cc,rpuf delicti of the offence, namely, the absence of consent ; and through the defect of this requisite, that is to say, through consent, the criminality of the act is removed. 1 Bricthaui t !(.:. S. 168.] FOR WHAT OFFENCES ABSENCE OF CONSENT ESSENTIAL. 34} in which case a man may carry away a minor from her guardian, but will have committed that offence, only when the carrying has not been consented to by the guardian. The positive operation of consent consists in altogether justifying or excusing an act which would otherwise be crimi- nal, or in legally or judicially mitigating the penalty which the act would otherwise be liable for. In this chapter men- tion will be made, however, of the negative operation only. It is with reference to that, that Olshausen, in his Commentary on the German Penal Code, after referring in paragraph 9 of his preliminary observations in connection with Chapter IV of Part I. 2 to several excuses of criminal acts, says : ** Wcihrend in den Fallen der N. 9 die objective Rechtswidrigkeit der Handlung ausgeschlossen ist, well das Recht die betreffende Ausndhme von der Regel gestattet, so ist in andere.n Fidllm die Rechtswidrigksit der Handlung deshalb zu verneinen, weil dieselbe nur scheinbar unter die Rsgel der Norm fdllt, in Walirheit aber die Handlung garnicht gey en dieselbe verstosst, so dass die Schuld-und Straf- freilieit niclit erst aus einer besonders zu begrilndenden Ausnahme nick eryiebt" (b) With these he contrasts the cases of the positive operation of consent as an excuse, which the Indian Penal Code also treats as general exceptions, and goes on to say : " Die hier in Eetracht kommenden Falle, bezulich derer im Einzdnen ghich falls auf die Lehrbiichcr des Strafr edits zu verweisen ist, sind : die seitens des alleinigen Tragers eines Rechtsgutes selbst und die mit seiner Einwilligung seitens eines Anderenvoryenommene Verletzung desselben, beides vorbehaltlich der positwrechtlich gztroffenen Ausnahmen" (e) 168. As to the offences in respect of which absence of consent is essential, reference has been Determination of of- mal j e to them aboye in g S< 7 and ^ fences for winch absence ,,,, -, c , -, of consent is essential. i he absence of consent is expressly mentioned as an essential constituent in the case of most of them, at least as defined in the Indian Penal (I) Whereaa the object ire illegality of the act is excluded in the cases of No. 9, be- cause the law permits the exception in question to the rule, the illegality of the act in the other cases is to be denied, because it only apparently comes under the regulation of the Norm, but in truth does not at all violate it, ao that the immunity from guilt and punishment is not due to an exception which must be previously established. (c) 'Ihe cases which here come into consideration, and regarding which reference may likewise be made to the various text-books of penal law, are the injury to a legal interest on the part of the sole bearer of it himself, and the injury committed to it with his con- sent by another, both bting exceptions, exclusive of those provided for by positive law. P. 219 342 NECESSITY OF ABSENCE OF CONSENT OFTEN' NOT EXPRESSED. [S. 168. Code. This mention, however, is not exhaustive, and it can- not be said that the absence of consent is not essential in the case of any other offence. There is no reference, for instance, to the absence of consent in connection with wrongful restraint, and wrongful imprisonment ; though the absence of it is not less essential in their case than in that of the offences of abduction and kidnapping. So also there is no reference to it in the case of the criminal breach of trust and enticing away a person's wife, though it is not less essential in them than in the case of theft or adultery. There can be no assault, criminal force, insult and some other offences unless there is an absence of consent, though this is not expressly laid down anywhere, and must be understood from the nature of the offences. Nor is it always easy to do so. and the difficulty is particu- larly great in the English law, where offences are not defined with the exactness of the Indian Penal Code. So extensive is the operation of consent, that Dr. Wharton broadly observes that the consent of an owner, when malice against the owner is alleged, is always a defence. 3 Hepp laid it down generally that the exclusion of the crimina- lity by the consent of the injured person would depend on this, 4 Ob die Nichteinwilligung 2um Thatbestande des Verbrechens, d.li.zu der gesetzlichen Definition der strafbaren That gehort ; wenn dies der Fall ist, dannja, andernfallsnein. (c} The Imperial Court in Germany also held ; 6 Wo das Gesztz die Einwilligung nicht ausdriicHich ericdhnt ; kann sie nicht berucksichtiqt iverden. (d) A cursory examination of the German Penal Code cannot fail to show, however, that the mere language of the definitions of offences contained in the Code is not a certain indication of the non-necessity of the absence of consent in the case of offences, which are not defined so as to exclude consent. Similarly in the Codes of other countries in Europe and America, where offences are defined, the express mention of consent in the definitions is not frequent, though most important conse- quences depend on the necessity or otherwise of its absence for any particular offence. (c) Whether non-consent pertained to the corpus delicti of the offence, that is, to the legal definition of the penal act ; if this is the case yes, otherwise no. (d) Where law has not mentioned consent expressly, it cannot be taken into consideration. a II Whart. Cr> L., 7, | * XI Neues Aroh-d-Crim. R.> 239. II Entslu. 443. S. 169.] MORAL CHARACTER NO CRITERION OF THE NECESSITY. 343 169. In early time?, the penal law was comprised mostly of offences which were unlawful acts against Moral character of an the rights, or prejudicial to the interests offence no criterion of of gome person an( J wn i cn could not be the necessity of absence i i . i ,i of consent. offences, when consented to by the person affected by them. It was then usual to attempt to determine the offences in which absence of consent was essential by a consideration of the nature, constituents, and the moral character of the various offences. As observed by Kessler, 5 men were then inclined to take into consideration, obdas Gesetz die Rechtewidriykeit der Handlunq als Voraussetzung der Strafbarkeit betone. Wo Ersteres der Fall, wie bei der Sach- besch'ddigung, schliesse die Einwilligung des Verletzten die Strafbarkeit aus, im anderen Falle wie bei der Kdrperverletzung, nicht (') No positive system of law, however, makes penal all the acts which should be punished from such a consideration. Nor does the law of any country restrict the penality to merely such acts. Thus every breach of contract is Hlegal as well as immoral, but it is only in very exceptional cases that it is treated as an offence. On the other hand, there is a large and growing class of statutory offences, consisting of acts which are innocent or indifferent in themselves, and which have been commanded or forbidden simply because the state considers it necessary to forbid them in the interests of the entire community or any portion of it. In these cases, the object of the State is merely to compel the adoption of a particular line of conduct, and its character from a legal or moral point of view is quite as immaterial as the presence or the absence of the consent of an individual to it. It follows from this, as observed by Kessler, 6 that das Verhaltniss einer Handlung zu Sittlichkeit und Recht fur ihre Strafbarkeit oder Straflosigkeit nach positivem Gesetze nichts beweist. Alle Erorterungen iiber den Jttin/luss, u'elchen in diesen Beziehungen die Einwilligung auf den Gharakter (e) Whether the law lays stress on the unlawfulness of the act as the presupposition of its criminality, where this is the case, as iu the case of mischief, the consent of the injured person excludes penality while in the other case, as in the case of hurt, it does nob exclude it. Ke&s. Einw., 29. J 6 Keas. Eimv., 30. 34,4 OBJECT OF THE LAW DETERMINES THE NECK3SITY. [SS. 170 & 171. der Handlung habe, konnen hochstens ah ein Rasonnement de lege ferenda in Betracht kommen. ( f ) 170. Fora determination of the necessity or the non- necessity of the absence of consent in Necessity of absence the case of any offence, reference must of consent for an offence be mac j e to the object of that offence, msiy be determined by -, c , , i , i , ,, the object of tbe law anc * * tne statute or Ja\v by which that applicable. offence is created, or in which it is corn- prised, This appears to be the only rule, which in the absence of an express declaration by the Legislature, is likely to lead to any practical result in the determination of the effect, of the existence or non-existence of consent on any criminal act. This view is express^ advocated by Kessler, 7 who says, ''man muss den Zweck zu erkennen suchen, wslchem die fragliche Strafbestimmung dient. Je nachdem dieser Zweck die Bestrafung auch der gegen den Einwilligenden veriibten That erfordert oder nichi, wird das Eine oder das Andere als Wille des Gesetzis anzunehrmn 171. Absence of free and intelligent consent is a particular Consent in theft. characteristic of all offences relating to property. 1 he question has arisen most often in connection with the offence of theft ; as to which it has been explained above in S. 8, that the absence of consent is quite essential. The definition of theft in the Indian Penal Code expressly mentions the absence of consent. The leading definition of larceny given in East's "Pleas of the Crown" does the same. Almost every modern writer on criminal law has mentioned it as a constituent of the offence. Thus in " Russell on Crimes," it is said that 8 " the taking of the goods should be without the consent of the owner, ini ito domino, and that this is of the very essence of the crime of larceny." Stephen defines theft as " the act of dealing, from any mo- tive whatever, unlawfully and without claim of. right, with (/") The relation of an act to morality and right does not prove its penality or non- penality according to positive law. All discussion concerning the influence, which in this; connection consent may have oa the character of the act, can be considered at the mosfc as an argument de Lege Ferenda. (fiO We must try to find out the object which is served by the provision of law in question. Accordingly as this purpose requires or does not require the punishment of an act committed against a consenting person, shall either tbe one or the other caso be looked upon as the will of the law. Kess. Einw., 32. j s II., 128. 8. 17)-] CONSENT IN THEFT. anything capable of being stolen, in any of the ways in which theft can be committed, with the intention of permanently con- verting that thing to the use of any person other than the general or special owner thereof. 9 The ways in which theft may be committed are generally such as involve the taking or converting of property without the owner's consent. 10 There is no reference to the absence of consent in regard to theft by conversion by a bailee or by a person who knows that the property has been given to him by mistake, and of which he fraudulently takes advantage ; n but these cases are not included in the definition of theft as understood in India or other countries. M) In Hammon's case, 12 Grose, J., in delivering the judgment of the court, even observed, that lar- ceny ''is the felonious taking the property of another without his consent and against his will, with intent to convert it to the use of the taker." In Scotland, Alison defined theft as consisting " in the se- cret and felonious abstraction of the property of another for the sake of lucre, without his consent, 13 Macdonald defines it as " the felonious taking and appropriation of property without the consent of the owner or custodier. 14 In the United States, Dr. Wharton says, that larceny may be defined to be the fraudulent taking and carrying away of a thing without claim of right, with the view of converting it to a use other than that of the owner, without his consent." Rapalje, in his work on Larceny, 16 expressly says that the taking and carrying away must, to constitute larceny, be ' { without the consent of the owner." Dr. Bishop says, 17 that a man may give away his property, therefore another who takes it by his permission does not commit larceny. In Garcia v. State, u Moore, J,, in delivering the opinion of the court said, that "the taking of the property without the consent of the owner is an essential ingredient of the offence (A) Coke, Hawkins and Blackstone do not refer in their definitions of larceny to the absence of conseut, but even they do not deny that absence of consent is essential. They require that the taking must be felonious or animo furandi, and generally speaking there can be no taking of a property feloniously or animo furandi, when it is taken with the owner's consent. e Art. 321. ll Maori. Cr. L., 18. 10 Arts. 32*1324. ' 5 1 Wliart. Cr. L., 757. 11 Arts. 32B, 325. 16 !' 1- i* Leach. 1089. j 17 1 Bish. Cr. L., 140. is I. Alison Cr. L., 250. ] "26 T.-x. ; 209. 44 CONSENT IN THEFT. [S, 171. of theft," In CroweU v. State, theft is defined as the fraudu- lent taking of property without the consent of the owner, with the intent to deprive the owner of the value of the property, and appropriate it to the use and benefit of the person taking it. On the Continent of Europe, the Italian Penal Code is quite as explicit in regard to the necessity of the absence of consent, as the Indian Penal Code. The Spanish Penal Code defines theft as involving the taking of the thing without the will of the proprietor, or the denial of its receipt. 20 The Code Penal does not refer expressly to the absence of consent, but the absence is involved in the other requirements of the offence. Thus R. Garrand says 21 that the soustraction should have taken place malgre the proprietor, invito domino, as the texts of Roman law say. So also A. Blanche in his work on the Practical Studies on the Code Penal 23 says that to constitute soustraction the thin should pass from the possession of the legitime detenteur (lawful possessor) to that of the author of the delit, a Vinsu et contre le gre (unknown and against the will) of the possessor. The same is the case in the German Penal Law. S. 242 of the Code declares a person guilty of theft, who cine fremde bewegliche Sache einem Anderen in der Absicht wegnimmt die&elbe sick rechtswidrig zuzueignen.( h ) There is no mention of the absence of consent in the definition, but it appears fo be quite settled that the taking to constitute theft must be against the consent of the person to whom the thing taken belongs. Almost every commentator of the Code lays down, that Die Aufhebung des Gewahrsams dcs Anderen muss oline dessen Willen geschehen Q After making tht obser- vation, Olshausen goes on to say : demnach liegt eine Wegnahme nicht vor, wenn der Inhabsr in die Aufhebung siines Gewahrsams einwilligt. Die Thatsache der Einicilligung des Inhabers und der dadurch bedingte Ausschluss einer Gewahrsamsverletz* tung kann auch nicht dadurch beszitigt werden, dass der Thater schon vor Erlangung des eigenen Gewahrsams an der Sache die Absicht hegte* iiber dieselbe demndchst fur sich zu (h) Takes another person's movable thing with the intention of appropriating it. (i) The deprivation of the possession of another must take place without his will. ' 24 Tex. App., 4. 23 Olshaus. Komm., 87i). S. 172.] CONSENT IN OTHER OFFENCES RELATING TO PROPERTY. 347 verfilgen.' J) So also Riidorff in his Commentary on the German Penal Code says : 24 eine Wegnahme im Sinne des P. 242 Hegt dann nicht vor, wenn dies3lbe mit Einwilligung des Inhabers oder des Eigsnthiimsrs geschah. (k] Similarly Rubo in his Commentary on the German Penal Code says :' 25 wo die Entfernung einer Sache mit Zustimmung desjenigsn geschah, dem zur betreffenden Zeit die Bestimmung iiber dm Verbleib der Sache zustand, da liegt begriffsmdssig ein Wegnehmen nicht vor und fthlt es mithin an einem Erfordernissd des fur den Diebstahl vorgesehenen Thatbestandes. (l) J72. Absence of consent is necessary, however, as observed above, in the case also of other offences Consent in other re ] a ti n g to property. Le dejaut de property * consent ement, chez la personne au droit de laquelle la soustraction porte atteinte, est un caractere commum au vol et aux autres delits contre la propriete. 26 (J") Binding in his work on Die Normen says : 27 Jede Anerkennung des Eigcntums schliesst das Verbrt der Aneignung fremder Sachen ohne Einwilligung des Eigentilmers, jede Anerkennung des Besitzers als eines Rechtsgutes das Verbot der Storung und der A ufkebung des Besitzes ohne Eimcilligung des Besitzers in sich (n) There can thus be no criminal misappropriation or criminal breach of trust of a property, if the appropriation, conversion or use of the property said to constitute the offence is with the consent of the owner of the property. In Henderson v. State; the owner's consent to the use of the thing entrusted (;') There is accordingly no removal when the possessor consents to his being deprived of possession. The fact of the consent of the possessor and the exclusion of the violation of possession thereby conditioned, can moreover, not be removed by the circumstance that the doer, even before acquiring the possession of the thing, entertained the intention of himself making away with it. (K) A removal in the sense of S. 242 is not therefore present, when it takes plaoe with the consent of the possessor or the proprietor. (I) Where the removal takes place with the consent of that person to whom rvt the time being, belongs the right of determining the whereabouts of the thing, a removal, as can be conceived, does not take place, and there is wanting accordingly a require- ment in the component parts of theft. (m) The absence of consent in the person whose right is assailed by souitractim is a feature common to theft and all other offences against property. (n) Every recognition of proprietorship includes the prohibition of the appropriation of another's thing without the consent of the proprietor, every recognition of possession as a legal interest includes the prohibition of the destruction and of the deprivaiim of the possession, without the consent of the possessor himself. 2 * P. 521. I 2 V. Gar. Dr. Pen., 104. Is P. 812. * 7 IT. 539. - 1 Tex. App , 433. 348 CONSENT IN OTHER OFFENCES RELATING TO PROPERTY [S. 172 as it wns used, was held to be a good defence to the charge of criminal breach of trust in respect of that thing. In the Indian Law, that offence is committed, even if the property entrusted to a person is dealt with "in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which he has made touching the discharge of such trust.'* It is clear that the consent of the real beneficiary will vary the trust or the contract itself, and any use of the property in accordance with his consent, can never be in violation of the legal mode of discharging the trust or of any contract entered into for that purpose. Nor can there be cheating, unless consent is obtained by wilful deception, in which case there can be no such consent as is recognized by Criminal law. Olshausen, in his Commentary on the German Penal Code, says : Aus der Nothicendigkeit des Kausalzusammenlianges zwischen der Tciuschung und der Vermo- gensbeschadigung ergiebt sich, dass falls jemand Verwdgensrechte aufgiebt oder auf einen &icheren Gewinn verzichtet, ohne dafur irgend ein Aequivalent zu wollen, von dem Vorliegen des hier in Rede stehenden Thatbestandsmerkmales des Betrugs kerne Rede sein kann, ivenn auch eine Tciuschung des Gebenden durch den Empfangenden mit unterlief.... den nicht dadurch wurde der Vermogensschaden zitgefiigt, sondern durch den eigenen Willen des Bechadigten.(f) In another place, the same Commentator says : 30 Da der Begriff des Betrugs durch die Zustimmung des am Vermogen Beschiidigten in dii Beschadigung aufgehoben wird, so muss folgeweisz die, wenn auch unrichtige, Annahme einer solchen Zustimmung das Bewusstsein der Rechtswidrigkeii bzw. den Dolus beseitigen. ( p ) (o) From the necessity of the causal connection between deception and injury to a pecuniary interest, there arises the fact that if anybody renounces his pecuniary rights o 1 ' foregoes a certain gain, without willing any equivalent for it, there can be no question of the essentials of the offence of cheating, aa here in question, being present even if a deception of the person giving has tuken place by thi person receiving; '.. for the injury to the pecuniary interest was not caused thereby, but by the will of the injured person himself. (p) As the conception of fraud is removed by the consent to the injury, of the person injured in his pecuniary right, so must consequently the supposition of such consent even if incorrect, remove the consciousness of the illegality or respectively of the doing. 99 I'. 1011. | 30 p. 1023. S . 173.] CONSENT IN KAPE. 349 Nor can there be a trespass on a person's property, when that person consents to it. Thus in Haley v. State? 1 Smith, J., in delivering the opinion of the court, said, " Consent, 110 matter how fraudulently obtained, if there be no mistake as to the taker or the thing taken, excludes the idea of trespass," and consequently the idea of larceny." Nor will there be mischief, if the destruction or change in a person's property is with his consent, because with a consent of the person affected there can be no wrongful loss or damage to him, which is the essence of that offence. In the French law, R. Garraud speaks of it as a rule applicable to all the crimes and delits against property, that they lose their delictuous character when the diminution of the value has taken place with the consent of the proprietor ; and that it is for this category of delits that it is true to say, 32 volenti non Jit injuria. 173. In the case of offences against person, the question of the absence of consent has arisen most fre- quently in cases of rape and assault. As to the former, it has been observed above, that originally in almost every system of law, the use of force or violence on the woman's person was considered essential for rape. So strict was the rule, that even the force involved in the act of sexual intercourse was not deemed sufficient to satisfy the require- ments of the definition of the offence. In Bailey v. Com. Lacy, J., observed that ''wherever there is a carnal connection and no consent in fact, fraudulently obtained or otherwise ; there is evidently in the wrongful act itself, all the force which the law demands as an element of the crime." This view was, however, not generally adopted by the courts. Thus in R. v. Siveenie, 3 * it was contended that the mere bodily contact necessarily implied in the act of connection was force sufficient to constitute rape, but the contention was nega- tived. Lord Ardmillan observed that there was no authority for such a proposition, and on principle it did not commend itself to him. Lord Deas in speaking of the force required for rape, said : *' I mean force different from that which is necessarily implied in the act of sexual intercourse, for there is a plain fallacy in confounding what is essential to the act, even when consented to, with the force necessary to obtain opportunity to perform the act." 81 49 Ark., 147. V Gar. Dr. Pen., 101. S3 82 Va., 107. s * 8 Cox. C. C., 227. 350 CONSENT IN RAPE. [S. 173. So also in Reg v. Dee, 35 May, C. J., after observing, that rape may be defined as sexual connection with a woman forcibly and without her will, said : " It is plain, however, 'forcibly' does not mean violently, but with that description offeree which must be exercised in order to accomplish the act, for there is no doubt that unlawful connection with a woman in a state of unconsciousness, produced by profound sleep, stupor, or otherwise, if the man knows that the woman is in such a state, amounts to a rape." The observation was, however, ultra vires, as the case was merely of the personation of a husband, and the other Judges did not even refer to it. In the United States also, it was held in Com. v. Fields* that the force involved in the act of a man getting in bed with a woman, and of stripping up her night garment in which she was sleeping, was not such force as was required for the offence of rape. In People v. Quin 3 " 1 Johnson, J., in delivering the opinion of the Court, said : ''It has never yet been held that merely having- carnal knowledge of a woman while deprived by voluntary intoxication or otherwise of all reason, and violation without her consent, and by such force only, as was necessary to accomplish the act under such circumstances, was a rape." It was a logical deduction, however, from the constructive extension of the word force to which reference has been made in S. 136, that absence of consent came gradually to supplant it in the definition of rape, so that sexual intercourse even unaccompanied by force or violence is generally held to be rape, if obtained without her consent. This development, has, however, not received proper recognition in the English Jaw even up to this time.( B ) (P) Thus in R. v. Sweenie, ss Lord President Maoneill, after observing that the writers on criminal law describe the crime of rape as consisting in having carnal knowledge of a woman's person forcibly and against her will, and that these or similar words are generally used by the text-writers to describe that crime, said " That description, if the words be taken in what is perhaps the most strictly literal meaning of them, may be understood to imply the positive presence in every case of rape of two eJements, rtz., physical force or violence applied to the person, so as to overpower resistance, and coercion of the will while it is in a state of dissent or opposition. Certainly, in most cases of rape these two elements do concur ; the crime is accomplished by the application of physical force overpowering resistance, and against the remonstrances of the sufferer. But I am not prepared to hold that these two elements, understood in that seuse are essential to the orime of rape. That the knowledge of the woman's person should be obtained against her remonstrance or against her will actively disseatii g, or in a state of known antagonism is certainly not necessary in all cases. It is not necessary that the act should be in that sense ' against her will.' It is 35 15 Cox. C. C., 585. I 37 50 Barb., 128. 8 4 Leigh, 64S. " 8 Cox. C. C., 229. S. 173.] CONSENT IN RAPE. Outside England, it has received greater recognition. The Code Penal does not define rape, and does not restrict it to cases in which the offender has used violence, and R. Garraud in his treatise on the French Penal Law says, 40 il semble, par suite, qu'on puisss decider, sans se mettre en disaccord avec la lot, qu'il y aura bien viol toutes les fois que la femme n'aura pas consmti a Vacte dont elle a ete la victims. Ce que la loi reprime, en effet, c*est non settlement le fait d avoir abuse d'une femme contre sa volonte, mais encore le fait d'en avoir abuse sans sa volonte. (q) net necessary that she should have a will or mind dissenting, or capable of indicating dissent. That is settled in the case of infanta under puberty, who, in the estimation of the law, have no will ; and some of your lordships have already observed that the same would hold in the case of an insane womau of mature years." After referring to cases of intercourse with the woman while unconscious, the learned Judge added : "But in such a case the connection has been had without her consent, and when she had not mental power to consent. In such cases tho expression * against her will,' used by the writers can mean nothing else than without her consent, and must be so understood, unless they are to be regarded as imperfect or rejected as erroneous. . . Such forcible inva ion of the woman's person is an assault ; the connection is without her consent ; and I think, that the forcibly invading a woman's person and having carnal knowledge of her, without her consent, through the instrumentality of assault, is nothing less than rape. I think the law would be the same, although the state of insensibility was not at all caused by any act of the accused, but had been knowingly and wickedly taken advantage of by him, such as some of the oases put in illustration by Lord Ivory, as for instance, the ca-e of a woman abused in a state of syncope, or iu a state of insensibility from intoxica- tion. In all these cases, the knowledge of the woman's person has beeuhad without her consent, which as regards the will of the sufferer, is all the law desiderates when the mind and its faculties are in abeyance, and it has been accomplished by means of assault, which necessarily implies violence all the violence that was necessary for the accomplishment of the criminal purpose in the circumstances, and the-efore, all the violence that the law desiderates in rape. I own that I cannot distinguish the present case from the cases to which I have been alluding. The woman is stated to have been asleep ; her mind and its faculties were dormant in abeyance. The accused is stated to have entered the bed by stealth, wickedly and feloniously that is, with a criminal intent, the criminal intent being to have carnal knowledge of her person without her consent. He is said to have accomplished this criminal purpose, by means of assault or forcible invasion of her person, for we are all agreed that the aat charged against him is assault, at the very least, whatever more it may be, and assault neces- sarily impl'es violence in this case all the violence that was necessary to accomplish his criminal purpose, having regard to the physical condition of the sufferer at the time. It appears to me that an assault feloniously committed on a woman for the criminal purpose, and effectuating the criminal result of having carnal knowledge of her person without her consent is rape. I know no more accurate description of that crime." Lord Ivory also after expressing his approval of Lord Cookburn's definition of rape as " having intercoarse without the woman's consent," observed that it was the absence of consent that constituted the essential element in rape, and that it was on that ground that connection with children and insane persons was deemed to be rape, because in these casea consent could not be obtained, and the law did not pay much regard to the employment of force. 3S This view was not adopted, however, by the majority of the judges. (y) It appears, therefore, that one can decide, without setting himself in disagreement with law that there is rape always whenever the female shall not haveconsented to the act of which she has been the victim. That what the law represses is not only the act of having committed abuse on a female against her will, bnt even the act of having committed abuse on her without her will. * IV, 465. 352 CONSENT IN ASSAULT. [S. 174. A. Blanche also takes the same view, and defines rape as consisting in le fait d'abuser d'une femme sans la participa- tionde sa volonte* 1 ( r ) Referring to the language of Art. 331 under which the offence of rape has been made punishable by the Code Penal, he says that the generality of the terms of that disposition permits the belief that according to it there is rape always whenever the female has not consented to the brutal act of which she is the victim. The woman who is assailed only by physical or moral violence can still defend herself. She who is surprised while asleep or stupified by narcotic draughts cannot do so. She has only law for her safeguard, and the affront to which she subnets is not less a rape than that which results from violence. The same view has been adopted in some countries even by the Legislature. The Indian Penal Code has, for instance, enacted that sexual intercourse will be rape not only when it is against the will of the female, but also when it is without her consent, or even with her consent when she is below twelve years of age. Nowhere, however, does absence of consent appear to be absolutely necessary for rape. In almost every system of law, sexual intercourse with a woman may often be rape, even when it is with her consent. Most of such cases are those in which consent is inadequate, and has, for instance, been obtained by a particular sort of fraud, or from a girl who, on account of her tender years, is incapable of giving a proper consent. Even in the case of full and intelligent consent, the intercourse will be rape, if it is against the woman's will. 174. As to assault, it has been explained above in Section 7, how absence of consent is the essence Consent in assault. of assault in the Indian and to some extent even in the English Law. Mr. Mayne in his work on the Criminal Law of India, says, 42 " where the force used to a person is an essential element in the offence intended to be committed, if the latter offence is only an offence by reason of the want of consent, the whole charge will fail, un- less want of consent is proved." Stephen in his Digest of (r) The act of abusing a woman without the participation of her will. 41 V. Blanche. Etud. Prat., 108. | *" P. 582. 39 P. 225. S. 175.] CONSENT IN ASSAULT. 353 Criminal Law, after recounting various acts which may con- stitute an assault in the English Law, says that they will be so only if done without the consent of the person assaulted. In Whitcher v. State, 43 Hoyt, J., observed, that "we are unable to conceive of a person being assaulted who consents to the acts which without such consent would constitute an assault." The courts, both in England and the United States appear to be agreed that " to an assault as such, consent is apart from special statutory legislation, always a complete defence." On the same principle, Livingston's Louisiana Criminal Code provided in Art. 442 that " where two persons agree to fight, unless it be with deadly weapons, no prosecution shall be commenced for assault and battery committed in consequence of such agreement, on the complaint of either of the parties, or any other person, unless the assault and battery took place in public, in a dwelling-house, shop or store ;" in which cases there may be a prosecution. So far is the rule carried, that in The Queen v. Bruce" a person entering into a shop pulled a young lad employed at the shop by the hair oif a cask where he was sitting, shoved him to the door and from the door back to the counter, and then put an arm round his neck and spun him round, and continued to do that, till he broke away from the person, and in consequence at the moment of his doing so reeled out into the road, and knocked against a woman who was passing, and knocked her down causing her death. The person was indicted for her death, but acquitted on the ground that he had not assaulted the lad, as the latter did not resist him in the transaction, and thought the person was only playing with him and was sure that it was intended merely as a joke. Erie, J., observed, speaking of the prisoner: " Had his treatment of the boy been against the will of the latter the prisoner would have been committing an assault, . . . but as everything that was done was with the witness's consent, there was no assault." 175. The cases in which an assault is notwithstanding consent, punishable, as being in disturb- Consent m assault in ance o f ^} ie public peace, are not against disturbance ot public ,, . j j i ^.u J.T ce this view, and do not show that the absence of consent is not an essential * 2 War.h., 586. j ** 2 Cox. C. C., 262. 45 CONSENT IN ASSAULT. [S. 175. constituent of assault. They proceed on altogether a different principle, a principle that where considerations of public peace are concerned, law "no more regards an agreement by which one man may have assented to be beaten, than it does an agree- ment to part with his liberty and become the slave of another." In The Queen v. Coney , 45 Stephen, J., speaking of prize fight?, observed that *' the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults.'* So also, Cave, J., after explaining that "a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault," said 40 that, " an assault being a breach of the peace and unlaw- ful, the consent of the person struck is immaterial." Similar language is used by text-writers. Harris, in his work on Criminal law, for instance, observes that " as a rule, consent on the part of the complainant deprives the act of the character of an assault, unless, indeed, non-resistance has been brought about by fraud. But the fact of consent will in general be immaterial where the alleged assault is of such a nature that its infliction is injurious to the public as well as to the person injured, and involves an actual breach of the peace." 47 Similarly, W. Jones in his article on assault in the English and American Encyclopaedia of law 48 says that, " in cases where life and limb are exposed to no serious danger in the common course of thing's, * ' O - consent is a good defence to the charge of assault, provided there is no breach of the peace, and consent is not obtained by fraud, or through ignorance or incapacity." Such observations and language may appear to show that consent is only a defence as regards assault, and its absence not an essential constituent of it. Really, however, they only show that acts of the nature of those con- stituting an assault, when done so as to disturb the public peace are an offence, even though done with the consent of the parties. In case of prize fights there is no consent to the blow received, but at the best a taking of their risk, a consent to the fight which involves a risk of them; as the parties so far from consenting to them use their best efforts to avoid them. * 5 8 Q. B. D., 634. 17 p. ** 8 Q, B. D. 539. *man with intent to outrage, or with knowledge of the likelihood of outraging, her modesty, as there can be no such intention or knowledge in respect of a woman who consents to the act, and the very consent will leave no modesty to be outraged. 177. Consent is an essential constituent of offences against personal freedom. Such offences in which wron8 tlie ful restraint and wrongful confinement. The essence of these offences is obstruction and prevention, which involve a notion of the contrariety to will, A person cannot be said to be restrained or obstructed in a (s) There is an assault against the modesty always whenever the act has been com- mitted against the w:l ; or even without the consent of the victim. (t) The assault against the modesty, from the time it is consented to by the person. is deprived of all criminality. IV. Gar. Dr. Pen., 482. [145. j s IV. 301. i I6b5 Journal du Ministere publio, | 8 S. 331 Code Penal. 10 V Blanch. Etud. Porat., 70. S. 177.] CONSENT IN VVKONGFUL CONFINEMENT. 357 place where he consents to stay, and from which he has no will logo. To constitute wrongful restraint or confinement of a person in a place, it is absolutely necessary that he should not be willing to stay where he is. If he consents to that, he cannot be said to be obstructed in proceeding in any direction or beyond certain circumscribing 1 limits, which is essential to those offences as defined in the Indian Penal Code. 11 A continuous application of superior physical force is not necessary to con- stitute those offences, 12 but it is necessary that there should be in some way an overpowering or suppressing of one's voluntary action. 13 Where there is no voluntary action to be overpowered or suppressed, there can be no wrongful restraint or confinement. Para. 239 of the German Penal Code defines the offence by providing punishment for every person who vorsatzlich und widerrechtlich einen Menschen einsp?rrt oder auf andere Weise des Gebrauches der personlichen Freiheit beraubt. (u) Rudorff in commenting on the para, observes that dieselbe eine Beugung des Willens unter den Willen eines Andern zur Vorausetzung hat. U(v} Rubo also says that Widerrechtlich handelt derjenige der Eefugniss zu dem, ivas er thut, nicht haf. 15 (w} Olshausen, in commenting on that paiM., observes that the Widerrechtlichkeit (illegality) may be excluded also by the consent of the person in question, though only as long as the consent, which can be withdrawn at any moment, lasts. Similarly Halschner says : 16 that eine Freiheitsbeschr'dnkung iiberhaupt nicht vorliege, wenn der Betreffende in die Vornahme einer die tteschr'dnkung seiner Freiheit bezwecltenden Eandlung im Augenblicke ihrer Verubung einwillige, ohne in der freien Bestimmung der Dauer ihrer Wirksamkeit gehindert zu werden. 1 " 3 (x} The same rule will apply to aggravated forms of wrongful confinement. The ordinary forms of aggravation provided for () Intentionally and unlawfully shuts up a man or in some other way deprives him of the use of his personal freedom. (yj Subjugation of one will under the will of another is a necessary requirement of it. (>/?) He acts illegally who has no authority (permission) to do that which lie does. ( Crivellari in his Con- cetti 'Fondamentalli di Diritto Penale 31 after observing that violence and fraud are the essentials of plagio, as consent naturally destroys even the possibility of conceiving an injury to personal liberty, says e se codesto consenso fosse data pazza- mente con destinaziom di irrevocabitita nett'avvenire, la nullith intrinseca del patto basterebbe a guarentire il diritto da ogni possibile lesione. II fatto non delittuoso in prindpio per il libero consentimento prestato a servire altri, diverrebbe reato non appena revocato tale consenso il soggetto passivo rivendicasse la sua liberta naturale, e il soggetto attivo malgrado do persistesse a volerla comprimere. (6) 179. Personal freedom may be interfered with not only in regard to the going to or from a particular Consent m other p ] ace> or ^ ti le WO rking for another person, offences affecting per- ' . . , , . " . C . eonal freedom. "^ also as to the doing or not doing of other acts. Criminal intimidation is the chief offence of this sort. Its chief constituent is a threat of in- jury to a person with intent to cause alarm or to cause an act to be done or omitted, as a means of avoiding the execution of such threat. 32 If the fear caused is such as to make him deliver some property, it is designated extortion in the Indian Law. The offence assumes a still more serious form and becomes robbery, if the fear caused is of instant death, of instant hurt, or of (a) The right to deprive one of the use of personal freedom, shall not be acquired by the circumstance that the person, to be deprived consents to the deprivation. (fc) And if this consent was given foolishly with the intention of its being irrevocable in the future, the intrinsic nullity of the pact would be enough to preserve the right from every possible injury. The act, not criminal in the beginning on account of the consent freely given to serve another, would become an offence as soon as such consent being revoked, the passive subject should reclaim, his natural liberty, and the active subject should, notwithstanding that, persist in wishing to constrain it. 31 Art. 481. I 32 S. 503, I. P. C. S. 180.] CONSENT IN ABDUCTION. 361 instant wrongful restraint ; and the person causing the fear is sufficiently near the person to whom fear is caused to cause that fear to him. 33 This fear can necessarily not be caused to a person conaetiitng to the doing of the act or to the delivery of the thing to induce the doing or the delivery of which the fear must be caused to constitute the offence. It has been repeatedly held, that the delivery of a property by a person with his consent is not theft, even though a threat of such fear has been held out to him, as will otherwise be sufficient to constitute robbery. 34 180. Abduction is also an offence essentially against personal freedom. Its essential consti- ;lon> tuent also is the absence of the consent of the person abducted. A person who consents to go from or to any place cannot be said to be abducted by any person who takes him from or to that place. The offence has been classified sometimes not with reference to its nature or con- stituents, but with reference to the usual purpose or object of its commission, as an offence against morality. The Indian Penal Code places it among offences against person, but under a sub-head separate from that of confinement, as it involves the additional element of carrying away the person in respect of whom the offence is committed. The offence is, no doubt, usually committed on children, whose consent even when given is immaterial. There has thus grown up another offence, which the Italian jurists call an u imperfect abduction," and which in the English and the Indian law is called kidnapping. This offence is independent of the consent of the person kidnapped, but not of all consent. It requires as an essential constituent the absence of the on sent of his guardian, which in regard to the offence of kid- napping takes the place of the consent of the kidnapped person himself. The Code Penal thus provides the punishment of seclusion for any one who should have by fraud or violence, enleue ou fait enlever des mineurs, ou les aura enframes, detournes ou deplaces, ou les aura fait entrainer, detourner ou deplacer des lieux ou Us etaient 'tnis par ceux a Vautorite ou a la direction desquels Us etaient sjumis ou confics?* The Code dues not I. P. C., S. 3 ! J'J. 1 3i Vide Supra S. 110. | Art. 354. ge> COSSEST IN ABDUCTION. [s. iso. sa} T anything expressly as to the rights or consent of the guardian, but the guardian's consent would evidently avoid the otfence, as placing a minor anywhere with it would be practically the guardian's own act, and therefore not Jin offence. Like the Indian Penal Code, the Code Penal does not in such cases allow any legal operation to the consent of a girl under sixteen years of age. It, therefore, specially provides for the punishment of a person who should take her away with her consent, if she should have consented to her enlevenient or followed voluntarily the ravisseur. This is quite as much on account of the inadequacy of the consent of a young girl who, because of the immaturity of her intellect, may easily be cajoled or frightened into giving the consent, 3G as on account of the rights of her guardian to her custody, and therefore to the offence being primarily against him. This is pointed out clearly by Fournel, who, in his treatise on Seduction, says : 37 L? entivement cCune mineure, quoique revetu de son con- Si-ntementy conserve sa qualification de rapt par deux raisons: 1 parce que ce consentement est presume surpris a son inex- perience et a safaiblesse, et I'effet d'une captation criminelle; "2 parce. que la personne ravie etant sous la puissance de ses pere et mitre, tuteur ou curateur, c'est centre eux que le rapt est commis. G'cst sur eux que retombe principalement I'injure d'um pareille entreprise, puisgu'ort leur enleue un depot precieux dovt Us sont les gardiens, et doitt la soustraction alarme tout a la fois leur honneur et leur tendresse" (a] No special provision lias been made for the taking away of young boys and persons <>f unsound mind, as their consent will, on general principles, be held non-existent. The Italian Penal Code also, after providing punishment for abduction, lays down that if a minor female may be sottratta o ritenuta senza violenza, minacda o inganno, ma col suo con- seuso, ** (b) he may be punished with reclusiou for a period from six months to three years. This is so on the grouud that the offence is really not against the person kidnapped. Thus (a) The taking away ot a minor, even thouyo it be done with her couseut, preserve* its deitjnatioD of abduction for two reasons; 1st, because this consent is pres>nm ' to bo surprised on account of her iuex-per.'ence nnd lier waknesa, and aa the effeut of a criminal undue influence; 2nd, because the person ravished being under the power of her father and mother, tutor or curator, it is against them that abduction is Committed. It in chiefly on them that the injury of such au undertaking chiefly fa'ls, since one carries away from, them a precious deposit of which they are the guardians, and the sviistrnctiun of whom alarms at once their honour aud their affection. (6) Taken a way or detained without violence, menace or fraud, but without her consent. 3" Art. o5G. 3 '1'. 331. I 3 Ari. 341. 8. 161] CONSENT IN ADULTERY. Ginlio Crivellari in his Concetti Fondamentali Di ' Diritto Penala 39 observes that the writers are agreed in affirming O fj that the son of the family and bo who is subject to the tutorial power cannot free themselves from it, without the assent of the parent or the tutor, and says : Chi s'inipadronisce di costoro senza consultare le persone che sono investite di tale podesta o che ne sono contrarie, fa, onta alVautorita di essc, P. sopendo che il consenso dcgli ablati e nnllo di fronts alia legge, dev'essere tenuto di plagio come si fosse impossessato del jlglio di famiglia o del papilla renuenti. ( ' ;) The same view is taken in Germany, and Breithaupt in his work on Volenti nonji.t injuria sa}'s : <0 Das Object der Verietzung blldet h>er der 'Eingriff in die den Eltsrn resp. dem Vormund behufs Ausilbung der Erziehungs- gewalt u. s. w. gesetzlich gegebene Autoritat. (d} The Spanish Penal Code contemplates the abduction only of a female, providing a punishment for it when executed against, her will and with a dishonest purpose, or in respect of a girl below twelve years of age. 41 A lighter punishment is provided also for carrying away a girl with her consent when she is below twenty-three years of age. 43 This, however, does not show that the absence of consent is not necessary for the offence, but. that, for a serious act like that, a female below twenty-three years of age is not considered qualified enough to give an intelligent consent. As regards males, the act is punishable only as an offence against the parental control, in which case the consent of the person taken away will of course be immaterial. S. 410 <>f the Code provides punishment for persuading a legal minor above seven years of age to abandon the house of her parents, tutor, or other persons to whom the care of their person may have been committed. There is no mention in this case of the absence of the consent of the parents, tutor or other such persons, but on general principles it is evident that there will be no offence in case of their consent. 181. The absence of the husband's consent appears to be treat- ed in some countries as an essential constituent Consent in adultery. o f the offence of adultery also. This can, of <(c] He who gets them into his power without consulting the persons who ara invested with such power, resists their authority, and knowing that the consent of the person carried away is null iu the- eye of the law, ought to be liable for plagio, as if he possessed himself of a son under parental control or of a war.l without their consent. (d) The object of the injury in this case is the attack on the authority, legally given to the parents or respectively to the guardian for th-j purpose of the exercise of their powers to train, Ac. 38 Art. 482. ** Art. 3it law, the husband of the woman with whom the adultery was committed was obliged on discovery to prosecute on pain of being himself convicted as an accomplice. Qui qucestum ex adulterio uxoris suce fecerit, plectitur, nee enim mzdiocriter ddinquit qui lenocinium in uxore exercuit. The ancient law in France was the same. If the husband connived at the guilt, le scandale et Vhonnetete publique, as observed by Jousse. required that the public minister should interpose his authority to punish both the woman and the husband who favoured her desordres? 1 This w;is proposed to be enacted in the Code Penal, but the provision was omitted for fear of scandalous discussions whish a proof of the husband's complicity would lead to. The Code Penal, 49 therefore, broadly provided that I 9 adult ere de la femme ne pourra etre denonce que par le mari. The law lias not reserved public action any longer, and it has been argued frum that that even the husband's connivance will not be a plea in bar to a prosecution by him, though an action for damages may be barred by such connivance ; as Us peines ne sont point pronon- cees a son profit, elles sont prononcevs dans un inter et general, et la societe seule en reqoit le benefice.* 9 Society also is interested more in the reunion of the spouses than in the punishment of an offence which leaves no such traces as render it certain and manifest for the public ; and it concerns good manners them- * III., 236. | * 8 Art. 936. *" IV. Adolph. & Hblie, 386. 360 CON'SCNT ADULTERY. 'S. 181. selves that, an act wounding the sanctity of marriage does not become a puhlic scandal by proceedings before tribunals, arid does not acquire a judicial certainty by judgment. 50 The husband is therefore allowed to pardon the wife, even after commencing proceedings against her, or to compound the offence with her in any way. Even Fournel in his " Treatise on Adultery" 1 says that it. was permitted to a husband to compound the offence of adultery with his wife, and d? remettre le Giime soit avant, soit apres Vaccnsation intcntee, and a transaction of that sort would operate against the husband and his heirs as an (insurmountable plea in bar. The Court of Cassation has repeatedly held that theact of the public minister for adultery ceases to have a legal character, when, during the prosecution, the husband withdraws the information of adultery by a formal declaration. 3 The entire law relating to the matter was well enunciated by the Court of Cassation in an arr&t, dated the 17th June 1 8o0. 3 The court said : que de la comblnaison des art. 336, 337 et 338 du Code Penal, il result a que Vadulterede la femme we pent etre poursuivi que sur la deno notation du mari ; qu'il pent fair e cesser la poursuite en se reconciliant avec sa femme ; quil pent meme, en consentant a la reprendrc, arreter Veffet des condamnatioits qui seraient intervenues ; que, ce sont la des exceptions aux regies qui assurer) t le libre exercice de I 'action publlque et la stride execution des juqements ; que t comme toutes les exceptions, celles-ci doivent etre rsnfermees dans les limit es que la loi leur afixees ; qii'il sujfit que le mari ait denonce Vadidtbre de so, femme pour que le ministere public ait le droit de rechercher et de poursuivre so??, complice, quand meme il ne lui aurait pas ete desicjne par la plainte ; que sz', par la puissance domestique dont est investi le mari, il est le maitre d'a.rreter la condamnation prononcee contre son epouse, cette faculte ne lui appartient point a I'egard du complice; que s'il importe a rinteret des bonnes mceurs que le fait de Vadultere n'acquiere pas, par un jugement, une certitude judiciaire, que si le desistement du mari, pendant le cours des poursuites, doit etre accueilli comme une preuve legate de V innocence de son epouse, que si, consequemment, ce desistement doit projiter au complice, ces considerations sont sans force et sans autorite, lorsque le desistement n'intervient qu'apres un jugement definitif qui a condamne la femme, et apres qu'il a ete juge souveraine- 60 IT. Adolph. & HMie,360. i P. 74. 2 7th August 1823 ; 30th July 1885. 3 IV. Adolph. & HMie, 363. ' S. 181-3 CONSENT IN ADl'LTERY. 367 ment qu'elh s'est r endue coupablc d'adultdre ; que, dans ce cas, le mari ne pmt pas plus, en pardonnant a la fcinme, arretcr les poursultes a faqard du complice, qu'il ne pour rait arretev Ics effete de la condamnation qui strait intervenue contre lui. 99 *** M. Bogron, in commenting- on Art* 336, says tliat the hus- band's connivance to the adultery will disqualify him from complaining of it. He cites in support of this an arret, dated the 1st February 1855, of the Court of Caen. (C> He himself, however, refers to a later arret of the same court, dated the 1:1) th November 1855 in support of the contrary view. The Spanish Penal Code provides that a husband cannot complain of the adultery if he has consented to it. 4 The Italian Penal Code not only provides that no proceed- ings can be taken for adultery except on the complaint of the husband, or, in case of adultery by the husband, except on the com plaint of the wife, 5 and that even after the conviction of one party there may be a remission by the other, which will put an end to the execution of the sentence, ai:d its penal e fleets ; 6 but it also lays down that in the case of the complaint by the li us band there will be no punishment for the wife or the (Cj It is said ill this arret: " Con-iiderant que si lu loi penalc doit protection au mari tromjte, outrage, qit.i alum peat reclamer V application et 'iiieme V aggravation de la peine dei'unt touts Ivis dcgres de la hierarchic juwiaire, quoique lt> niiii istvre public ait ner/liije ou refuse de cmu-uurir aux tnenuren propr/-* a cuineiver le droit d'ayyrarutioti, cede l-ii ccsie d'etre npplicnble de.* qu'il n'y a phi* ni truittfivrie >ii veritable offense: nullum potest viden injunam accipere qui seruel volu.it: quc.le marl qui aurait 'ftfu le prix (Vodieusrs cumplalnunces ite auUfait troucer data la, lot h-s inayens de speculcr du nintreau tt dt; fairs encore acheter HHH, silence.; que Vinte.ret da la fandlle, cotnequeni- tnent I'interet xoci'l, dcinai\de qu'uit vi'lesuit jtte ftur une finite comniuue aux deux ipoux, que l<* HBCettitA d'ctnvffi-r le srimdale, en parcil cas, a its fccaimue et nutublcmciit indiquee par le leyixlatei/r iiwdri-iic lursqa'il a .tupprime le droit ctmnacre j)arletem/is de Jli-trir P' j/r un juste chdtintei-t Vinjaiiw conduite du nuiri; congicfeniitt qua li connivence au nMi'i 1'ayiitt randu, iiidirjne de ne plaindre, I' act um du miniatere public lie saurait etrc ar.cunillie, puisqu'elle nt prorede bwnqu'autnr. t qutllv a, pour luge une jjluinte uu unv denunciation recevablti de la part dv >nari;etc.'' (d) (d) That it results from the combination of Arts. 33>), 337 aud 33S of the Code Penal that the adultery by the female can be prosecuted only over the deuunciation of the husband ; that he car. stay the prosecution by reconciling himself with her ; that he can even, by consenting to take her back, stop the effect of the sentence ; that these are the exceptions to the rules which assure the free exercise of the public aution and the strict execution of judgments ; that like all exceptions, these ought to be restricted to the liuiitrf which the law has ordained 1'or them ; that it is sufficient that the husband has tiled a uomplaiut of his wile's adultery to enable the public minister to make a search for and prosecute her accomplice, even when he should not have been designated in the complaint; that though by the domestic power with which the husband is invested, he has the power of stopping the sentence pruiiounced against his wife, that power does not pertain to him in regard to the accomplice; that if it is material in the interest Of public manners that the doed of adultery should not acquire by judgment, a judicial certainty ; that if the dt sis ting of the hui bind during the course of the prosecution proceedings ought to be received as a legal proof of the innocence of his wife ; that consequently this desisting should be to the profit of the accomplice. These considerations are without force * Art. 359. | Art, 35(3. 1 6 Ait. 208. 3(33 CONSENT TO AN ACT REQUIRING PARTICULAR EVIDENCE. [8. 182. adulterer, if it is proved TahUa costretta o indotta a prostituirsi ovvero ne abbia ecdtata o favorita la prostitutione? (e> The German Penal Cods goes still further ; and ex- pressly enacts that adultery may be punished only after the man.iage has been dissolved, 8 for which evidently a complaint and proceedings by the innocent party will be necessary. Thus Olshausen in his Commentary on the Code 9 observes that adultery being punished not so much as an attack against the institution of marriage as a material injury to the rights of the spouses arising from marital faith, the consent of the hus- band as held by Binding, Kessler and others must exclude the penality of adultery, and that a person who panders his wife, cannot, as observed by Schwarze, Liszt, Meyer, and Rubo. complain of her adultery. 182. Mere evidence of consent will not avoid the criminality of an act, when it is criminal without Mere consent does not regard to the consent of any person, even avoid criminality of when the act is cr i m i na l no t because done an act which must be .,, r , n done with particular without consent of a person, but done evidence of it. without certain particular evidence of his consent. This principle is limited, however, to the cases in which consent will, as a matter of law, neutralize the otherwise criminal quality of the act ; and where a prosecution was founded on a statute imposing a penalty on any one dealing or trafficking with a slave without a written ticket or permit from the owner, it was held that the offence would be consummated, although the trading was done by the slave in pursuance of the instructions of the owner, and in his presence. 10 and without authority, when the desisting comes only after a definitive judgment by which the female has been sentenced, and after it has been established by sovereign authority that she ha* become guilty of adultery ; that in this case, the husband can no more by pardoning the wife step the prosecution in regard to the accomplioe ; that he could not stop the effects of the sentence Which should have oome against him. (e) Had constrained or induced her to prostitute herself or had Instigated or favoured the prostitution. 7 Art. 357. I 10 United States r. Withier, 5 Dill., 8 Para. 172 35. 8 P.P. U43.6M. S. 183.] {EXEMPTION BY CONSENT FKOM CRIMINAL LIABILITY. ogg CHAPTER X. CONSENT AS A JUSTIFICATION. * 183. Consent has its positive operation in cases in which there is no room for a negative operation. a ground Tmig? in the case o f offences, of which the . ' absence of consent is not an essential component, consent often operates as a ground of non-liability. This effect of it is not restricted to any particular class of offences. The Indian Penal Code recognizes it to its fullest extent, and broadly provides as a general rule that nothing is an offence by reason of any harm which it may cause to a person who has given consent to suffer that harm or to take the risk of that harm. The word harm is used in the Indian Penal Code in a most comprehensive sense, and therefore the exemption from criminal liability on the ground of consent will not be restricted to acts causing physical injury, but extend to all private criminal acts, whether they affect body, mind, reputation or property. To illustrate the rule, the authors of the first draft of the Indian Penal Code say : 1 "If Z, a grown man, in possession of all his faculties, directs that his valuable furniture shall be burned, that his pictures shall be cut to rags, that his fine house shall be pulled doAvn, that the best horses in his stable shall be shot, that his plate shall be thrown into the sea, those who obey his orders, however capricious those orders may be, however deeply Z may afterwards regret that he gave them, ought not, as it seems to us, to be punished for injuring his property. Again, if Z chooses to sell his teeth to a dentist, and permits the dentist to pull them out, the dentist ought not to be punished for injuring Z's person. So if Z embraces the Mahomedan religion, and consents to undergo the painful rite which is the initiation into that religion, those who perform the rite ought not to be punished for injuring Z's person." Most Legislatures ignore this effect of consent altogether, and some jurists even deny it in express words. Thus Breithaupt in his work on Volenti non fit iujuria, comes to the conclusion that Die Verletzung des Einwilliijenden iui Alfyemeiiicn, vom rein > Note B annexed to the draft. 47 370 EXEMPTION BY CONSENT FROM CRIMINAL LIABILITY. [S. 183. wissenschaftlichen Standpunkt aus behandelt, in alien den Fallen, wo das " invito Ict3so " nicht das einzige ausschliessliclie .Deliktsmerkmal bildft, wo also nicht auf Grand der ertheilten Einwilligung Uberhaupt das Zustandekomm3n eines Verbrechens verhindcrt wird, der betrefttnden Handlung nicht den Character der Rechtswidrigkeit nimmt und somit die Strafbarkeit des Vtrletzenden nicht ausschllesst. 2 (<0 Practically, however, effect is given to consent as a ground of non-liability in every system of law, and the practical conclusions even of Breithaupt are much the same as those of the Indian Legislature. Thus he also holds surgical operations to be free from criminal liabilty, though on the ground, that the act causing the injury in such cases is done without any criminal or other inimical intent, and directly for the benefit of the person injured, 3 aground that will justify an operation on a person even against his consent. In the case of slight bodily injuries also, he admits their non-penality, though in an indirect way, and as a result of a rule of procedure. Thus speaking of the question of the effect of consent on the act of causing them, he says that it is settled well diese ein Antragsdelikt ist, und man sicherlich annehmen muss, dass die ertheilte Einwilligung einin Verzicht auf die Ausubung des Antragsrechts enthdlt. Ein gegentheiliges Resultat wtirde aller- dmgs in diesem Faf.le sehr merkirilrdig sein. Welcher Richter wilrde wohl denjeniyen bestrafen, der einem Anderen mit desscn ausdriicklicher Einwilliqung eine kraftige Ohrfdige ge/jebsn hat, nachtraglich aber von diesem hierfiir gerichtlich belangt wird, Wenn der Gesetzgeber bestimmt, dass die Verfdgung einer wider Wdlen zugefilgten Korperverletzung nicht eintreten darf, au,f deren Bestrafung Jemand nach der Verlctzimg Verzicht geleistet hat, so ist umsoweniger nach der ' ratio legis ' eine strafrethtliche Ahndung denkbar, wenn der Betreffende vor der Verletzung durch Ertheilung der EiminUigung S3inen Verzicht auf Bestraf- ung erklart hat. liter 1st also die Strafbsigkeii nicht in Anwendung der Regel volenti non fit iniuria eine Folgs der (a) The in]ury to a consenting pers&n in general, if dealt with from a purely scientific point of view, dees not remove from the act in question it 5 character of illegality, and accordingly does not exclude the puni'hment of the injuring person, in all those cases where the " invito laeso " does nob form the one exclusive symp- tom of the delict, that is to say where on the ground of the consent which has been given, the very existence of the offence is not altogether prevented. a P. 36. I 3 P. :.5. S. 184.] PRINCIPLE OF EXEMPTION FROM LIABILITY. Einwilligunq, sondern des in letzterer liegenden Verzichtes auf Ausubung des Antragsre,chtes. (lj] 184. Nor is it difficult to explain the principle underlying the exemption from liability on the 8 ground of the positive operation of con- sent. In explaining that principle, the authors of the Indian Penal Code in the Note B annexed to their draft of the Code say : " It is impossible to restrain men of mature age and sound understanding from destroying their own property, their own health, their own comfort, without restrain- ing them from an infinite number of salutary or innocent actions. It is by no means true that men always judge rightly of their own interest. But it is true that, in the vast majority of cases, they judge better of their own interest than any lawgiver, or any tribunal, which must necessarily proceed on general principles, and which cannot have within its contemplation the circumstances of particular cases and the tempers of particular individuals, can judge for them. It is difficult to conceive any law which should bo effectual to prevent men from wasting their substance on the most chimerical speculations, and yet which should not prevent the construction of such works as the Duke of Bridge water's canals. It is difficult to conceive any law which should prevent a man from capriciously destroying his pro- perty, and yet which should not prevent a philosopher, in a course of chemical experiments, from dissolving a diamond, or an artist from taking ancient pictures to pieces, as Sir Joshua Reynolds did, in order to learn the secret of the colouring. It is difficult to conceive any law which should prevent a man from capriciously injuring his own health, and yet which should not prevent an artisan from employing himself in callings which are useful and indeed necessary to society, but which tend to impair the constitutions of those who follow them, or a public- spirited physician from inoculating himself with the virus of a dangerous disease. It is chiefly, we conceive, for this reason, that almost (&) On the ground that this is an offence punishable only on a charge, and we must certainly suppose, that the consent which has been given, contains a renunciation of the exercise of the right. An opposite result in this case would certainly be very remarkable. What Judge would punish a man who had given another a sound box ou the ear with his consent, but who was subsequently charged by that other for it. If the legislator ordains that there may not take place the prosecution of a bodily injury committed against the will of a person, the punishment of which has, however, been renounced by the injured after the injury, thsn a penal prosecution according to the ratio legis is still les> conceivable, when the person in question has declared a renunciation of the punishment by giving consent already before the injury. The immunity from punishment is here accordingly not on account of the rule volenti non fit iniuria, and therefore a consequence of consent, but on account of the renunciation of the exercise of the right of bringing a charge which is involved in the 'latter. 372 RESTRICTION OF RULE AS TO NON-LIABILITY. [SB. 185 & 186. all Governments have thought it sufficient to restrain men from harming others, and have left them at liberty to harm them- selves." 185. The rule, though of a wide application, is sub- ject to several restrictions and exceptions, Restriction of the rule spec i a Uy i n regard to offences against as to non-liability on L J -p, ,. f the ground of consent. person. For consent to justify or excuse the commission of an offence affecting one's person, it must of course be such as is recognized to be adequate for the purposes of the criminal law generally, thus having all those objective and subjective qualifications which are referred to in S. 90 of the Indian Penal Code, and have been explained above in Chapters YII and VIII, without which it must bo deemed non-existent, and which render it quite inoperative in cases in which the absence of consent is the gist of the offence. That, however, is not enough, and to render it a ground of non-liability for other offences, it should fulfil such other requirements also as may be determined with a view to secure that consent is given after full deliberation, and to minimize the chances of the abuse of the liberty allowed to individuals of suffering harm. It must be given, generally speaking, either by a person of more than the ordinary maturity of age required for valid consent, or for the benefit of the individual affected. These restrictions are in the Indian Penal Code laid down in SS. 87, 88 and 89, which deal with the cases in which consent is held to justify or excuse acts that would otherwise be criminal, on account of the harm caused, or intended or known as likely, to be caused by them. S. 87 refers to general cases of harm, while S. 88 deals with acts done for a person's benefit, and S. 89 with cases in which the person to whom the harm is caused or contemplated to be caused is unable to give consent on account of the immaturity of intellect or the unsoundness of mind. 186. One of the conditions usually imposed is that the consent to the act should be given by a striction of the person thoroughly able to understand the exemption from liability * ... . - J in regard to the a<*e. harm Jikely to result from it. 1 his ability is not the same in every case. Where the act causing harm is intended to do good to, and done for some benefit of, the person consenting to it, any unusual caution in respect to his capacity is not necessary. However, where the harm consented to is gratuitous, and not intended or known by the doer to be likely to be counterbalanced by any good or benefit, S. 187.] RESTRICTION AS TO NATURE OF HARM CAUSED. a higher degree of capacity is required ; and this is particularly so in cases where the harm is not slight, but serious and such as no reasonable person ought or is likely to consent to. It is on this principle, that S. 87 of the Indian Penal Code, which contemplates the case of harm without any intention of doing good or causing benefit, expressly provides a higher age than usual for the giving of consent. The original draft of that section did not contain any such special provision, but provided for the consent being given by a person of twelve years of age. The Committee appointed in 1854 for the consideration of the draft of the Code, which recommended the enactment of that draft, considered that a person of that age, though competent to give consent in ordinary cases, should not be competent to consent to suifer or to take the risk of harm which is caused, or intended to be caused, or known to be likely to be caused, by an act done otherwise than for the benefit of the person consenting. To give such consent, they proposed that the person should be above eighteen years of age, which was the limit adopted in the final draft as enacted. Consent will therefore not justify an act causing harm under that section, when the person consenting to the harm is below eighteen years of age. Thus even a private boxing match between two schoolboys under that age will be criminal, The consent of the master of the school, or even of the boy's parents or guardians shall not excuse the match, as their consent can have any operation under Sec. 89, only when the boy to whom the harm is caused t is below twelve years of age, and the harm is for his benefit, which cannot always be said of a boxing match. 187. No consent can, however, affect certain rights of individuals. What these rights are has Restriction of the not been definitely determined, but it is exemption from liability , , . , c ^ ,1 , ,1 in regard to the nature a general characteristic of theirs, that they of the harm caused. cannot be affected without aifecting the interests of the society. They are ordi- narily called inalienable, as they cannot be parted with or thrown away by the individual to whom they pertain, though correctly speaking, consent does not involve the alienation or a transfer of any right. Dr. Wharton enumerates among such rights, those to one's life, liberty, and the pursuit of happiness. It has been ex- plained above in S. 5 that the interests of the society are affected by the harm to the individual generally in a manner only too remote for its recognition by law. And whatever difference of RESTBICIION AS TO NATURE OP HARM CAUSED. [S. 187. opinion there may be in regard to the doctrine of the inaliena- bility of rights to one's life or limb, it does not appear to have been seriously advocated by any jurists of eminence, that the inalienability can extend to liberty or pursuit of happiness. 3 ( The doctrine has, however, been maintained with the greatest persistency in regard to life. It is not seldom extended to" serious injuries to one's person on the ground that society has quite as much interest in the bodily health and integrity of its members as in their lives. Some jurists deny the doctrine of the inalienability of rights in regard even to one's life or body. Thus Kessler is an eminent advocate of this denial. Certain German jurists having maintained that doctrine on the ground that such rights being Wesensbestimmtheiten (the essential elements) of der sittlichen Personlichkeit (moral personality), he combats it, asking whether, the sittliche Personlichkeit mehr dadurch einbilsste, wenn sie auf den Besitz eines Zahnes, als wenn sie auf den Hires Vermogens verzichtet.* (c) In another place in the same work Kessler, in speaking of the observation that the volenti non jit injuri r i is not applicable in the case of bodily injuries, terms it as an irrige Voraussstzung (wrong supposition). The question has been considerably discussed by other jurists also. Stiibal, for instance, maintained the non-imputability of (A) Dr. Wharton exemplifies the inalienability of the right of liberty by a reference to the invalidity of the agreements by a person for absolutely giving up the exercise of his business capacity. This invalidity is, however, not ou the ground that liberty is an inalienable right to the injury of which one's consent is ineffective, because an agreement not to do business in particular localities will also be liable to the same objection, and Dr. Wharton himself admits that an agreement of that sort will be sustainable. It is even doubtful whether an agreement to give up a certain right can be considered an injury, and no question as to the alleged injury can arise while the person making the agreement is willing to abide by it. There can be a question of the violation of liberty only when the person making the agreement wants to act in contravention of his agreement, and at that time there will be nc consent of his to any injury to be done to him ; unless of course consent is treated as such only- when it is given irrevocably. There is no ground, however, for such a restriction of the term consent, and the invalidity of the agreement in oases in which it is invalid is due not to the fact of the consent to an injury affecting the liberty of the person consenting being inoperative, but to the requirements of the public policy whioh does not approve of an absolute restriction of liberty in such cases, though it allows of a partial restriction thereof. As an instance of his views, Dr. Wharton observes : '' Should it appear that incarcera- tions are effected, even by consent, by ecclesiastical or medical authority, of persons whose liberty is thus wrongfully destroyed, the fact of consent could not, if the doctrine here advanced be correct, be used as a defeuoe, when such party seeks release. " 6 He does not cite any authority however for this proposition, and it appears that the absence of consent is the very essence of incarceration, and that the-e can be no incarceration of a person who gives his consent to be so incarcerated. If the consent is not to incarceration, there can of course be no question as to the ineffectiveness of consent on the ground of the inalienablity cf the right of liberty. (c) Loses more in giving up the possession of a tooth than in renouncing that of wealth. 3 I Whart Cr. L.. 160. * p. 5. * Kess. Einw., 4. e j Whart. Cr. L., 162. S. 188] HARM TO ONE'S LIFE. suicide on the general principle of volenti non fit injuria. Hepp argued agninst it. There was a difference of opinion even as to whether the doctrine of the inalienability was based on the duties which a man owed to himself, or on those which he owed to others. The latter view was generally approved, but even the soundness of that was assailed on the ground principally, that if it were established that society had a right to the preservation of ones' life in spite of himself, it must follow as an inevitable consequence that society has a right of punishing intemperance and even emigration ; and it was chiefly that ground that weighed with Boehmert in his decision against the penality of suicide and homicide by consent. 188. In early times, indeed, a person could consent to any harm to himself. His life and liberty Harm to one's lil'e like his money and his clothes were all among ancients. his own. Murder was only a tort which could be expiated for .by a pecuniary com- pensation to the heirs of the deceased ; and according to the Mahomeden law, the consent of the heirs can even now excuse the extreme penalty in spite of the state. In some nations and in some cases, suicide was even honored ; while in others though not punished, it was condemned. Thus in Greece, in was not made a punishable offence, but declared to be a bad act. Plato and Pythagoras pronounced against it, and Calcante opposed the cremation of the body of Ajax to save the holy fire being profaned by the remains of a suicide ; burial being assigned to such persons as a dishonorable mode of disposing of the dead. 7 In the early days of Roman and German civilization also, a person could consent to the infliction of death on himself, and killing a person at his request was no offence. It was not punished even during the time of the Republic among Romans. Montesquieu in his Spirit of Laws says 8 il n'y avait pas de loi qui piinit ceux qui se tuaient eux-memes. Cette 7 cliez les historiens, est toujours prise en bonne part et on ne voit jamais de punition pour ceux qui I'ont fait^. (d) The Roman law, reflecting the principles of Stoic philosophy considered suicide as an act of strength and virtue, si in impatientid doloris, aut tcedio vitce, aut morbo, aut furore, aut pudore, mori maluit. (d) There was no law among them for the punishment of those who killed themselves. This act was 3)ways taken in good part by historians, and one never sees those who have done it punished. 7 Can-. Prog., Art. S. 1152 (n). . | * Book xxix, Ch., 9. 376 HARM TO ONE'S LIFE. [S. 189. It is sometimes considered that suicide was an offence under the Emperors, being punished with forfeiture of goods ; but it appears that even then forfeiture was allowed only in cases in, which a person being charged with some offence punishable with forfeiture of goods attempted to avoid the forfeiture by suicide. 9 It was in such a case not the suicide that was punished, as the offence which preceded it. It was on this very ground that the heirs of the person committing suicide were allowed to avoid the forfeiture by showing that he was innocent of the preceding offence he was charged with. It may thus be affirmed that the suicide quantutique appositamente commesso per nuocere ad altri, nan punicasi neppure dal Eomani ; poiche altro essi non facevano se non impedire die il danno agognato dal suicida si consumasse. 10 (e) 189. The influence of the Christian and the Mahomedan religions encouraged the notion of the Influence of Church sanct it y o f the human life. They both and State on harm to " , 1 /, 1 vr x c u- one's life. taught that a man s me was out or his control, and, as it were, exclusively of and for God. The church resuming the Jewish traditions which deprived of sepulture the remains of those who committed suicide, forbade the celebration of mass over them, and their burial with a religious pomp. The Christian religion made its effect felt not only in the manners of the people, but also in their laws. Under its influence, secular legislation added tem- poral penalties to the religious, the forfeiture of the property left by the suicide to the denial of burial to his remains. These penalties applied to all, excepting only those who laid hand on themselves while mad or even sujets a des eyarements d' 'esprit ; and forfeiture was sometimes restricted to those who did that to avoid the shame of a condemnation. The Canonical law considered suicide not only as a crime but as a homicide, est vere homicida et reus homicidii ohm se interficiendo inno- centem hominem interfecerit. This attitude of the Church materially restricted the power and the practice of consenting to one's death. The increasing importance of the State and its public character helped to strengthen the same conclusion, by subordinating human life (e) though committed with the object of injuring another, was not punished even among the Romans, because they did nothing but prevent the consummation of the loss aimed at by suicide. Carr. Prog., Art. H07 (n). | . 10 Hommcl., 127. S. 190.] IMMUNITY OF SUICIDE FROM PUNISHMENT. 377 to the State. Stoics argued against that view, but it was accepted even in the Justinian Code. "It is," says Locke in his Essay on Civil Government, 11 ** out of a man's power so to submit himself to another as to give him a liberty to destroy him ; God and Nature never allowing a man so to abandon himself as to neglect his own preservation, and since he cannot take away his own life, neither can he give power to another to take it." 12 " Nobody," he says in another place, " can give more power than he has himself, and he that cannot take away his own life, cannot give another power over it." A person's life is thus now generally regarded as belonging to the State, and even those who deny the doctrine of the inalienability of rights altogether, admit that a person's life ought to be preserved in spite of the person himself. It is repeatedly laid down by judges 13 as well as text-writers that a man cannot consent to the taking away of his own life. His life is not his to take or give away. It would be criminal in him to take it, and equally criminal in any one else who should deprive him of it with his consent. Cooley in his work on Torts, after observing that, says : " " The person who, in a duel, kills another, is not suffered to plead the previous arrangements and the voluntary exposure to death by agreement, as any excuse whatever. The life of an individual is guarded in the interest of the State and not in the interest of the individual alone." 190. Suicide was punished in France before the Revolution in 1789, which, however, abolished it Immunity of suicide entirely, and proclaimed the principle from punishment. of absolute human liberty, and of the in- difference of suicide before justice and society. The present French, Austrian, German, and Italian Penal Codes are all silent as to the punishment of suicide ; and it is urged in favour of the immunity from punishment of suicide, that the injury resulting from it to the person killed can neither be estimated nor taken into account ; that the injury to the survivor is generally small ; that it produces no alarm ; and that it cannot be repeated. Francesco Carrara maintains that the imputabilita politico, of suicide as a special del-it should not only be admitted but " P. 347. 1 1S McCuc v. Klein, 60 Tex., IfiS. i* Ch. IV, S. 23. Willejr .-. Carpenter, 15 L.R. A., 8:>0. l * P, 187. 48 378 IMMUNITY OF SUICIDE FROM PUNISHMENT. [S. 191 maintained ; as no one can deny that homicide, even though committed by oneself, is a thing fruitful of danno politico, si per la perdita che incontra la societa di quel cittadino, si per il mal esempio che induce ; onde e a temersi per la natura imitatrice delVuomo, die il propriddio si ripeta e si renda frequente, con grave sospetto e dolor e delle famiglie e detrimento della prospe- rita nazionale. 15 (/) There are other jurists and lawyers also, who see in the suicide an act socially and morally punishable, qui prive la collectivite d'un de ses membres, et, par la contagion de r example, se repercute dans tout le milieu social. Gray, C. J., in delivering the opinion of the Supreme Court of Massa- chusetts in Com. v. Mink, 11 even said that " self-destruction is doubtless a crime of awful turpitude ; it is considered in the eye of the law of equal heinousness with the murder of one by another." The weight of opinion is, however, in favour of the immunity of suicide from punishment. 191. The immunity of suicide from punishment has some- times been based on the ground that there Suicide not an offence, can b e no crime unless there is an injury as it does not contem- t j - ftnd h nQ j hfcg ^^ plate injury to any , . r rights, hunselt, and therefore killing oneselt does not violate any right. Thus R. Garraud observes that the man who commits suicide does not violate aucun rapport juridique, ni avec lui-meme puisque tout rapport suppose deux termes, m avec la societe vis-a-vis de laquelle il ria pas I'oUigation de vivre If this were correct, however, a person committing suicide with a view to avoid military service would certainly be punish- able, at least in s}^stems of law in which a person causing hurt to oneself with that object is punished, as in such a case there is clearly found la lesione del diritto della patria^ e delle suc- cessive redute. (!i) (/) Political damage, as well through the loss of that citixen, encountered by society, as through the bad example set by it ; whence it is to be feared owing to the imitative nature of man that suicide may repeat and render itself frequent, causing grave suspicion and grief to the families and detriment to national prosperity. (g^the injury to the right of the country, and of the recruits who are taken as the next in order. 15 C.trr. Prog., Art. 1152. I " 123 Mass, 422. IY Gar. Dr. Pen., 313. iy Gar. Dr. Pen., 313.. S. 192.J IMMUNITY OF SUICIDE FROM PUNISHMENT. Francesco Carrara considers that the impunity of suicide is not sufficiently accounted for by the theory of the non-violation of rights, specially as all good legislations do not admit the penality of suicide even where it tends to injure any rights ; that the soldier who tired of fighting in lieu of mutilating attempts to kill himself, is not punished for the attempted suicide .... though he thereby offends precisely against the same rights as he would have injured by mutilating himself; and the modern schools and legislations are generally agreed on the absolute immunity from punishment of suicide even when it appears to be committed with a view to injure the rights of third persons, or in those special conditions in which bodily injury to oneself is undoubtedly punishable. 20 The basis of exemption, according to him, is rather the absence of an intention to injure any rights, the absence of a criminal intention or what is known as dolus. He thus observes that it can be said that he who kills himself non ha Vanimo di nuocsre ad altri, od eludere un diritto altrui : il fallito non si uccide per defraudare i creditori, ma per sottrarsi al disonore cJie lo minaccia. Laddove il soldato che si mutila, evidentemente intende a defraudare la legge, e nuocere cosl alia patria che ha diritto al suo servigio militare, ed alia successiva recluta costretta a servire in sua vece ; mirando cosl procacciarsi un vivere ozioso ed inerte a dispetto della legge? 1 (A) J92. The immunity of suicide from punishment is some- times based on the presumption of its author Suicide not pun- committing the act in a state of madness ishable as indicative , /. >. o .... ,, , , , of unsoundness of ( fir ore) . Suicide is generally held to argue mind at the time either insanity, or a mind so distracted by of its commission. misfortune, disease, or unhappiness, as to make the offender an object rather of pity than of punishment. R. Garraud, for instance, says: 23 I 'extreme difficulte de savoir si la resolution du suicide a ete ou non execute dans la plenitude de sesfacultes mentales nous parait concluante dans le sens de I'impossibilite d j etablir une repression du suicide. Gelui qui attente a sa vie n'a pas, en ejfet, le plus souvent, cette liberte d* esprit et cette maitrise de soi~ (Ji) Has not the intention of injuring another, or evading the right of another : the bankrupt does not kill himself to defraud the creditors, but to save himself from the dishonor which threatens him. Whereas the soldier who mutilates himself, evidently intends to defraud the law, and so to injure the country, which has a right to his military service, and the successive recruit forced to serve in his place, intendiug thus to procure for himself an idle and inert life in spite of the law. z Carr. P t og., Art. 1407. | 21 Can. Prog., Art. 1-107. 2 IV. Gar. Dr, Pen., 314. 380 INADVISABILITY OF PUNISHING SUICIDE. [S. 193. meme qui sont Us conditions de I'imputabilite penale. Quel que soit le motif qui Vet determine au suicide, s'U se tue, (test toujours parce que sa raison a ete plus faible que son mal moral ou physique. (t) Francesco Carrara 23 , however, dissents from this view. Ferrao, the great Portuguese Jurist, has argued strongly against it in his work on the theory of Penal Law, 24 pointing out that the instinct of self-preservation is to be found even in animals, that brutes do not commit suicide, that among savage tribes suicide is unknown, that statistics show that suicide is most rare among minors and old men, and that, therefore, suicide is not a conse- quence of the defect of reason, but, on the other hand, an effect of reason which grows and progresses with it ; that the life of a brute is constituted only of a physical force, and it is not possible that a force should act against itself ; that the life of man is constituted of two distinct forces, namely, the spiritual and the physical, which usually act, help- ing each other, but that in certain contingencies there grows up an antagonism between them, when the spiritual force acts to the destruction of the corporal force, and the greater the power acquired by spiritual force, the more frequent is the suicide. 193. A more real ground for the immunity from punish- ment of suicide is that a dead person Inndvisabiutv 01 pun- , -, j , - -, -, ./S -, kr,i,i Car P rog . ( Art> H07i . 25 p 370 V1J.41. 2 iv. 3H. S. 193.] IN ADVISABILITY OP PUNISHING SUICIDE. be punished but by making the penalty (whether it be forfeiture or disgrace) fall exclusively upon the innocent. The English mangle the remains of the dead. The inanimate body feels neither the ignominy nor pain. As a natural result, the mind of the innocent survivor alone is lacerated by useless and savage butchery, and the disgrace of the execution is felt exclusively by him. The father, by a rash act of self-destruction, deprives his family of the support he ought to aiford them ; and the law completes the work of ruin, by harrowing up their feelings ; covering them with disgrace ; and depriving them by forfeiture of their means of subsistence. Vengeance is unknown to our law ; it cannot, therefore, pursue the living offender, much less, with impotent rage should it pounce, like a vulture, on the body of the dead, to avenge a crime which the offender can never repeat, and which certainly holds out no lure for imita- tion ; the innocent, we have assumed, should never be involved in the punishment inflicted on the guilty. But here, not only the innocent, but those most injured by the crime, are exclusively the sufferers by the punishment. We have established as a maxim, that the sole end of punishment is to prevent the commisson of crimes; the only means of effecting this in the present case, must be by the force of example; but what punishment can be devised to deter him, whose very crime consists in the infliction upon himself of the greatest penalty your law can denounce ? Unless, therefore, you use the hold which natural affection gives you on his feelings, and restrain him by the fear of the disgrace and ruin with which you threaten his family, your law has no effective sanction ; but humanity forbids this." Most of the modern laws have generally repu- diated confiscation which to reach the guilty punishes his family. Nor do present manners tolerate penalties which unable to reach the guilty were inflicted only on dead bodies. La punition ne pourrait done etre, en definitive, qu'une fletrissure publique ; mais quel serait Veffet de ce blame depourvu de sanction, de cette infliction morale prononcee sur une tombe. 27(J) Ferrao observing that this is not consistent with the prin- ciple on which rewards arc given for the dead, says that you decree glory for a soldier who encounters death assailing (j) The punishment could be definitely only a public stigma ; but what will be the effect of this blame deprived of sanction, of this moral infliction pronounced over a tomb. " III Adoph. and Hdlic, 477. 382 INADVISABILITY OF PUNISHING SUICIDE. [if. 193. the trenches of the enemy, and if you decree that glory and grant medals to his corpse to encourage others to imitate him, you ought also to decree infamy against the suicide to prevent others from following his example and causing such damage to the society. 23 R. Garraud, 29 " on the other hand, observes that even if this may stop a few suicides, how many others would be pro- voked by des recherches indiscretes^ by the publication of enquiries which necessarily must result from it, on account of the force of imitation or the contagion of example. In expressing his doubts about the efficacy of the punishment of suicide, he says : Gelui que ne peuvent arreter ni Vhorreur de la mart, ni les liens les pluschersde la nature, niles craintes d\me etermte malheureuse ne saurait etre retenu par des lois qui n 1 atteindront que son cadavre ou sa memoir e. Dira-t-on que s'i/ meprisait c?s his pour lui~meme, il les redoulerait, du moins. pour sa famille, sur laquelle rejaillirait Vignominie de la condamnation ? (k) Mellio in his ' Institutions of the Criminal Law of Lusitania ' says : 3fl Hoc ddictum impune est, vel quia auctor potestati humanae jam non subditur, vel quia quern proprias vitae, uxoris et coguatorum amor ab eo parando non deterret, minus deterrere potest pcena post mortem infiicta. Francesco Carrara also ob- serving that the sole consideration of political convenience is a sufficient consideration for excluding suicide from the category of offences, says : 31 La impotenza di irrogare contro il cada- vere una pena che non abbia del barbaro o ddVingiusto : la commiserazione verso lafamiglia gia troppo afflitta e avvilita : la inutilita di rafforzare con la esemplarita di una pena Vamore della propria vita bastantemente radicato in noi dalla natura; sono considf-razioni che a tutta ragione psrsuasero molti legislatori contempnranei a passare sotto silenzio cotesto fatto ; e conseguentemente a non elevarlo alia condizione di delitto. (l) (It) He whom neither the horror of death, nor the dearest ties of nature, not the fear of an unhappy eternity oould not prevent, would not be restrained by the laws which reach only his corpse or his memory. One will say, that if he scorns the laws for himself he would fear them at least for his family, over which the ignominy of the condemnation would reflect itself. (I) The inability of inflicting on a dead body a penalty which would not be barbarous or unjust ; the sympathy with the family already too much afflicted or humbled ; the nse- lessnessof enforcing the love of one's life by means of penalty as an example, r.ufnciantly implanted in us by nature ; are considerations which in all reason have persuaded several contemporary legislators to pass over this act under silence ; and cousequently not to elevate it to the condition of a delict. 2< VII. Theory Penal Law, 46. I so Tit I., S. 23. 20 IV. Gar. Dr. Pen., 314. 31 Carr. Prog., Art. 1155. SS. 191 & 195.] SUICIDE IN ENGLISH LAW. 333 194. By the common law of England, suicide was con- sidered a crime against the laws of God law Ui ide in EngHsh and man > f r which the lands and chattels of the person committing it were forfeited to the king ; his body was denied all Christian rites, and allowed only an ignominious burial in the highway with a stake driven through ; and he was deemed a murderer of himself, and a felon, felo de se. The forfeiture was abolished along with that for other felonies by the Forfeiture Act, 1870 ; section I of which provided, that " no confession, verdict, inquest, conviction, or judgment of or for any treason or felony, or felo de se shall cause any attainder or corruption of blood, or any forfeiture or escheat." In regard to the burial also, the Interments (felo de se") Act, 1882, provides, that "it shall not be lawful for any coroner or other officer having authority to hold inquests to issue any warrant or other process directing the interment of the remains of persons against whom a finding of felo de se shall be had in any public highway, or with any stake being driven through the body of such person," but that he would be interred where be would have been interred if the verdict of felo de se had not been found against him. That Act did not, however, authorize the performing of any of the rites of Chris- tian burial on the interment of the remains of any such person, and is not to be taken to alter the law or usage relating to the burial of such persons. The only penalty now attending the offence of felo de se is thus a denial of the right of Christian burial. Forfeiture of goods not being allowed in the United States, suicide is practically not punishable there, yet its criminality is recognized whenever the question has a bearing collaterally ; as, for example, when one who in attempt- ing to kill himself, accidentally kills another, is held guilty of criminal homicide. 195. While suicide was deemed a heinous offence, an attempt to commit it was sometimes of suicid/ punished even as voluntary homicide ; punitur tamen perinde ac si delictum consummasset. With a change in the views about suicide, its attempt also ceased to be punishable. As a general principle, an attempt to do what is not an offence cannot be deemed an offence. It is thus no longer punishable in France, Germany, Italy and some other countries. The chief objection against its penality is that a threat of it PENALITY OF ATTEMPT OF SUICIDE. [S. 195. si aggiungeva un nuovo motivo di uccMersi a colui che gia tanti ne aveva da aver tentato la propria straje. 32 ( " It is sometimes attempted to punish an attempt to commit suicide as that to commit homicide, suicide being deemed a species of homicide. Pessina went even to the length of requiring that the attempt at suicide should be punished with the same severity also. Boehmert, Francesco Carrara and others consider that view as fundamentally wrong, on the ground that suicide is not comprised in the genus homicide. Besides in countries where, as in France, an attempt is generally liable to the same punishment as is fixed for the principal offence, the result of treating an attempt at suicide as an attempt of murder may be to condemn to death the person who had in vain attempted to kill himself ; and thus the executioner would in compliance with law do the act which he had attempted against law unsuccessfully. 33 In England, an attempt to commit suicide is not deemed an attempt to commit murder, but only a misdemeanor triable at Quarter sessions. 34 In Reg. v. Doody?' 3 the prisoner was indicted for unlawfully attempting to commit suicide, and Wightman, J., told the jury that '' the offence charged consti- tuted, beyond all doubt, a misdemeanor at common law." The rule appears to be the same generally in the United IStates. Thus Dr. Bishop says : 36 " If one attempts to commit self- murder and fails, is he indictable for misdemeanor as though the attempt were on a third person ? There would seem to be no ground for distinguishing the two cases, or distinguishing the common law of England and of our States on this question. And by the common law as administered in England, this is an indictable misdemeanor." The New York Penal Code provides 37 that a person who with intent to take his own life, commits upon himself any act which is dangerous to human life, or which, if committed upon or towards another person and followed by death as a consequence, would render the perpetrator chargeable with homicide, is guilty of attempting suicide ; which will be a felony punish- (m) Would add a new motive to kill oneself for him who had already had so many as to have attempted his own destruction. 32 Carr. Prog., Art. 1155. a ' Carr. Prog., Art. 1155 (n). 3 * Reg. v. Burgess, 9 Cox C. C., 247. 35 6 CoxC. C., 463. 36 II Bish. Cr. L., 083. 37 S.S. 174, 178. B. 196.] PENALITY OF ABETMENT OF SUICIDE. 385 Penal ity of abetment of suicide. able by imprisonment for two years, or by a fine not exceed- ing one -thousand dollars, or both. It has generally been held that in the absence of a special statutory provision, where suicide is not a crime, an attempt to commit suicide cannot be a crime; and that a provision for the punishment of an attempt, does not make suicide itself a criminal offence. 38 But in some, of the States, it has been held to be punishable even in the ab fc sence of a statutory provision. Thus in Massachusetts, 39 it was held to be an offence, on the ground that suicide though not technically a felony, "being unlawful and criminal as malum in s-e, any attempt to commit it is likewise unlawful and criminal. " 196. As a rule, suicide not being punishable, its abetment also is not punishable on mere general principles. Nor is there any special pro- vision for the punishment of the abetment in the German, French, and Austrian Penal Codes. As a result of this, those who have instigated one to the suicide, those who have aided or assisted him in the acts of prepara* tion for it, those who have given instructions to commit it or furnished means for its execution, for example, the arm.s> the poison, are all free from punishment. This immunity is, however, generally disapproved. -The abetment, in this case, is worse than the principal offence, and has none of its excuse. R. Garraud in his Trait e Du Droit Penal Francais 40 observes that this participation is an act socially and morally reprehensible, qui ne pent s'expliquer, comme Facte du toticide, par un egarement cfesprit, un trouble de I' intelligence* So that the legislature, continues R. Garraud, even if unwill- ing to make suicide an offence, has the right and the duty of punishing under the special designation of "participation in the suicide of another " those who should provoke any one to commit suicide or co-operate in it. In the Hungarian Penal Code, and in the Penal Code of the Pays Bas, there are special provisions for the punishment of an abetment of suicide. The Spanish Penal Code 41 expressly provides for the punishment of a person helping an individual to commit suicide. The Italian Penal Code 42 specially provides for the punish- ment of a person who should have persuaded (determind) another to commit suicide, or given him assistance in commit- 88 Vide Darrow r. Family Fund Soc., 116 N. Y., 537. Meacham ?'. New York Benevolent Assoc.. 120 N.Y.,237. 49 s Com. r. Dennis, 105 Mass., 1R2. Com, v. Mink, 123 Mass.. 422. 40 IV. 315. S. 335. 12 S. 370. PENALITV OF ABETMENT OF SUICIDE. [S. 196. ting it, provided, of course, that the suicide is committed. Francesco Carrara in justifying the punishment of the abetment of suicide by participation says : E do perche sebbene io non abbia diritti sopra me stesso, e net fatto di uccidermi non si possa ravvisare, quanta a me, la violazione di un diritto , pure bisogna bene in me riconoscere un diritto sopra jposed even to make it a culpable- homicide by consent to voluntarily induce a person to put himself to death, and the provision was omitted finally, only because it was considered as likely to lead to difficulties by affording pretext for false charges . (B) The Code,, however, (B) Campbell, in commenting On the provision, observed, 50 "that nothing- was more common than for native women of all a.ire&to thso-w tliomsolves into wells on the merest yiomcntavy impulse of passion, excited generally by the roost triffing causes, such as * s - SS. 175 & 170. | *9 13 Masv. S5G. 6<> Indian LHW Commissioners' First Report, P;ira. 2GO. S. 199.] ABETMENT 07 SUICIDE CONFUSED WITH HOMICIDE. does not justify the voluntary causing of death in any case on the ground of consent. 199. The abetment of suicide is sometimes confounded with homicide by consent. This is Confusion of abetment often due to the fact tlmt it is f reque ntly of suicide with homicide TYV-I, i, ' v -i i ^ of consenting person difficult to determine in individual cases whether there is only an abetment of suicide, or homicide by consent ; and in some cases, the two acts are so close to each other that it is indeed impossible to determine the exact line between them with certainty. This difficulty however is not a sufficient reason for confounding acts essentially and juridically different from each other. 1 In France, Adolphe and Helie in their work on the theory of Code Penal " say : Est-il vrcti, en premi3r lieu, qu'il n'y alt de suicide proprement dit que lorsqu'une personne se donne elle-meme la mart ? Est-il vrai que cet acte doive perdre cette qualification aussitot que la mart part d'une autre main que la sienne ? Cette assertion, qui repose uniquetnent sur V etymologic du mot t me parait pas exacte: c'est la volonte qui fait te suicide, et non pas Vacte ma- teriel de se donner la mort. L'homme qui de son propre mou- vement se precipite a la louche d'tin canon, ou qui sans necessity court au-devant des lalles ennemies, cet Jwmme ne sera-t-il pas suicide ? Qu" 1 importe que vous teniez vous-meme Varme qui va vous detruire, ou que cette arme parte par I'effet d'une machine que vous aurez prepares? Aura-t-elle un caractere different pares que vous aurez depose Varme entre les mains an unexpected reprimand, a thwarted wi.-h, the colic, &c.,and tliosc who are afflicted by such female folly, are as its alleged instigators, too often harassed most unjustly by the police, for fatal "consequences produced by the deceased alone. " And referring to that, the Commissioners observed, " We are inclined to think that the explanation by which inducing a person voluntarily to put himself to death is declared to be voluntary culpable homicide by consent, would give an opening to a great deal of vexation and oppression in the manner suggested by Mr. Campbell. The word ' inducing' is so compre- hensive that it would afford ample verge and scope to malice and corruption to work safely in getting up pi-etended charges against innocent persons founded on circumstances in their domestic history which may be plausibly distorted, and in causing distressing inquiries thereupon into, family matters. We are led to conclude that it wiJl be better to omit the explanation. Cognizance would then be taken only of such cases of proposed inducement to suicide as clearly amount to murder. There may. indeed, ariae cases in which it would be improper to treat, the person who had induced another to commit suicide as guilty of murder, although thi circumstances of the case might be clearly within the definition, and the purpose might be evident ; a^, for example, where the high- born native of India induces the females of his family to take poison in order to save themselves from pollution in an expected assault of a licentious soldiery, but such are cases to which we agree with Sir J. Awdry the prerogative of mercy would properly 1 Brcithaupt, 44. 1 2 HI, 482. L 390 ABETMENT OF SUICIDE CONFUSED WI1II HOMICIDE. j . 199, d'une personne ic/norante, aussi aveugle et devouee que cette machine ? N'est~ce pas vutre rolonte sinon votre main, qui en pressera la detente ? Eh quoi ! un homrae aura anne le bras d'un serriteur decouc, i I aura imperieusement exige d'une areu- gle amitie la preparation d'un poison, lid seul en fin aura me-lite za propre mart et en aura fait les apprcts, ses instances nauront raincu qu'avec peine la resistance qu\i lui opposait, et Ton voudiait, pour apprecier G3tte action, faire abstraction et de son concours et de ses efforts, et n<; roir que le fait d'un autre dans Vaote dont il a lui-meme ordonne la perpetration ! Nan, la main etrangcre dont il s'est serui, quelqiie criminelle quait etc son aide, n a plus tie qnun instrument, uns arme dont il a diritje les coups; I 'attentat ns psut changer de niture, pares (ju'il a chans/e de mode d* execution ; son caractere ii'est pas dans la forms extcrieure de la mart, mats dans la rolonte qui I 'impose ; des qiCelle est le result at de Vordre de la persoime homicide e, elle cunstitue un veritable suicide. (m) The fallacy underlying this is explained by Breithaupt who points out that there can be no will to cause the death in an engine used as a means of causing it, while it must necessarily exist in him who kills one with his consent ; and that the hand of the person who kills another with his consent must be more than a tool directed by that other, bein<)- directed rather by the */ / will of the former, and that therefore the act causing the death must be ascribed rather to him than to the person killed. 3 (m) Is it true that there is suicide, in the proper sense of the word, only when a person has caused his own death? Is it true that this act ou^ht to lose that designation, directly the defith proceeds from a hand other than his own ? This assertion, which rests. Only on the etymology of the word, does not appear exact : it is the will which niake* the suicide, and noc the pLysical act of causing death to oneself. The man who "of his own accord precipitates himself before the cannon's mouth, or who without necessity runs in front of the enemy's b. ills, will he not be a suicide '' What does it matter that you yourself held the weapon which was going to destroy you, or that that weapon uaa directed by the force of a machine which you had prepared ? Will it have a different character, because you have placed the weapon iu the hands of an ignorant person, as blind and devoted as that machine V Is it not your will, if not your hand, which will press the trigger of it ? Eh what, a man should have armed the hand of a devoted servant, he should have imperiously required of a blind friendship the preparation of a poison, ho alone should have finally meditated his own death, and should have made the preparations for it, -his entreaties having with difficulty overcome the resistance which one opposed to him, and one would wish to appreciate this action, to make abstraction, of his agreement and of his efforts, and see only the act of another in the action of which he has himself ordered the perpetration. No, the hand of the other, by which he is served, though it has been criminal iu aiding him. has been no more than an instrument, an arm of which he has directed the blows ; the assault cannot change the naturo, because it has changed the mode, of execution ; ifa character is not in the exterior form of the death, but in the will which imposes it ; and as it is the result of the order of the person killed, it constitutes a veritable suicide. 3 Breithaupt ; 11. S 200 ; ] ABETMENT OF SUICIDE DISTINCT FROM HOMICIDE. So fur is the confusion carried in England, that if two persons agree to commit suicide together, and only one dies, the survivor is held guilty of murder. In Rex v. Dysonf the prisoner had cohabited with the deceased for several months previous to her death, and she was with child by him. Being penniless and in a state of extreme distress, they both went into a boat to drown themselves. There was some doubt as to whether he fell into the water intentionally or accidentally ; but he struggled back to the boat, when he found that she had gone into water, and in spite of his efforts to save her, she was drowned ; and the judges, on reference, observed that "if the deceased threw herself into the water by the encouragement of the prisoner, and because she thought he had set. her the example, in pursuance of their previous agreement, he was a principal in the second degree,. and was guilty of murder." This observation was followed in Reg. v. Alison f in which also the prisoner and the deceased had been living as man and wife, and being in great distress, agreed to poison themselves, and took laudanum, and she alone died. Patteson, J., held, "that if two persons mutually agree to commit suicide together, and the means employed to produce death only take effect on one, the survivor will, in point of law, be guilty of the murder of the one who died." hi Re, 4-3, S. 201.] HOMICIDE BY CONSENT IS 1JEAL HOMICIDE. erliefert bios, wie Mittermaier " zutrefend ausfiihrt, den Bewei$ dafiir, dass sein Wille, sick das Leben zu nehmen biszum letzten Augenblick beharrUch blieb. Bei der Todtung mit Einwilligung dagegen will der Getodtete allerdings gleichfalls die Herbeifdhruny des vrlctzendeti firfolges, dieser Wille aber bethatigt sich nicht dnrch^ Selbsthandlung; er wiirde nimmermehr die Katastrophe herbeifiihren keimen, wenn nicht tin zweiter Wille vorhande/i gewessn ware, icelcher selbststdndig verletzend gewirld ~hatte\ einzig und all em der Wille des Todlenden hat thatsachlich den Todbswirkt. (00} 201. Homicide by consent, on the other hand, is a real ,, . . -. , homicide. The person killed by it indeed Homicide by consent r ., -> . ^ ,, r ^ , , -. J is real homicide. solicits ms death, but he takes a purely passive part ; the author of the act, the principal doer being only he who causes the death. His act falls clearly within the definition of murder, and consent does not appear to be recognized as a complete justification of it in any system of law. Dr. Wharton, in his work on Criminal Law, observes, 12 that consent in such cases is no bar to punishment, is an axiom acknowledged by all schools of jurisprudence, and rests on the maxim, jus publicum privatorum voiunfate mutari nequit. vC) It is a general principle of the English law, that he who kills another upon his desire or command is, in the judgment of the law, as much a murderer as if he did it merely of his own head. 14 The English Criminal Code Bill of 1879 thus proposed to enact broadly, and the Canada Criminal Code (o 0) He who commits suicide is personally active in the destruction of his existence. This personal activity is not removed even in the case where another helps the person committing suicide in the act. Nothing is, therefore, changed in the criterion of suicide by the fact, that the killed person allows another to prepare or assist him iti the execu- tion of the act. "The actual doer is and remains here the injured or killed person ; he merely gives a proof, as Mittermaier correctly remarks, that his will to take his life has remained persistent till the end. On the other hand in the case of homicide by consent, the killed person certainly likewise (wills) the causing of the injurious effect ; this will does not, however, realise itself by an act of his own; he would never have been able to cause the catastrophe, if a second will had not been present, which has independently ccted in an injurious manner; the will of the killing person alone has here actually aaused the death. (C) In illustration of this, reference is often made to the case of Smith v. Com. 13 , in which a person had agreed not to bring a writ of error in a criminal case of high degree, and Tilghmau, C. J., said : " what consideration can a man have received, adequate to imprisonment at hard labour for life. It is but going one step further to make an agreement to be hanged. I presume no one would be hardy enough to ask the court to enforce such an agreement, yet the principle is in both cases the same.*' 11 IX G. A; 43S 4 ia 1.428. "14 S..&R., 09. 50 I Hawk. P. C.,Ch. 27, S. 6. Ill Ru3. Cr., 5. HOMICIDE BY CONSENT IS REAL HOMICIDE. 'S. 201 has actually enacted, th>it no one 1ms a right to consent to the infliction of death upon himself ; and if such consent is given, it shall have no effect upon the criminal responsibility of any person by whom the death of the consenting person is caused, In Germany, the abetment of suicide is not punishable, but the Penal Code expressly provides a lower punishment for homicide on request, 10 which may substantially be considered as homicide by consent. There is no special provision for such homicide in the French and the Italian Penal codes y but, notwithstanding some difference of opinion, it may now be considered as settled that homicide by consent is punishable there as murder. The Court of Cassation in France has repeatedly judged in favor of the penality of homicide by consent on the double ground that consent is not mentioned among the excuses of homicide, and homicide is a delict of public action in which the remission by the injured person does not help the offender. 16 It observed in its arret dated the 16th November 1827, that V action pour la quelle une personne donne volontairement la mort a autrui, constitue un homicide volontaire un meurtre, et non un suicide, ou un acte de complicite de suicide. w R. Garraud says : 17 la difference entre la culpabilite sociale de celui qui participe a un suicide et de celui qui commet un homicide pmr rendre service a un ami, est evidente, parce quelle resulte de la nature meme des choses. Ce n'est pas la volonte seule qui fait le suicide, pas plus que ce rfest la volonte seule qui fait le meurtre. Le crime se constitue, id comme ailleurs, de la volonte et du fait ; et si, aux yeux de la loi morale, Vhomme qui se tue est aussi coupable que celui qui se fait tuer par un autre, il n'en est pas tnoins vrai que le tiers qui a donne la mort nest pas le complice d'un suicide, mnis I'auteur d'un homicide volontaire, puisqu'il a realise en lui-meme et par lui-meme les deux elemsnts qui constituent le crime, le fait de V homicide et la volonte de tuer. (pp) (p) The act by which a person voluntarily causes death to another constitutes volun- tary homicide murder, and not suicide or an act of complicity in suicide. (pp) The difference between the social culpability of him who participates in suicide and of him who commits homicide in order to render a service to a friend is evident, because it results from the very nature of the thing. It is not the will alone which constitutes suioide, no more than it is the will alone which constitutes murder. The crime consist* in this case as in other cases of the will and of the act ; and if in the eyes of the moral law, the man who kills himself is as guilty as he who gets himself 1D S. 216. | is carr. Prag., Art. 1155. (n). *i IV Gar. Dr. Ten., 317. S. 202.] HOMICIDE BY CONSENT IS NOT MURDER. Francesco Carrara speaking of homicide by consent says/ 8 it is true homicide, and legitimately punished as such, non gia {come erronea-nente ditse il Friihwald) perche cada sot to il titolo di correita in omicidio : ma perche direttamente cade sotto il titolo di omicidio, come esattamente avvertirono Herlst ed Geffter. Lo uccisore del consenziente e U vero e proprio autore delta uccisione, ed autore volontario, a dijjjerenza di chi ai.uta al suicidio altrtd ; il quale non fa die degU otti preparatorii. Nel jirimo caso Jo estinto era nil fatto criminoso un mero soggetto passivo : nel secondo caso era un vero soggetto attivo primario del? azione micidiale. (q) 202. So far is the principle carried, that even a person who killed another in an affair, in which he Objections to tbe contemplated and attempted his own treatment or homicide -1,1 i i i ., i M*. r i by consent as murder. death > WaS held to g mlt 7 f murder. The Court of Cassation in its arret, dated the 16th November 1837, in support of the convic- tion said : que V action par la<.]uelle une personne donne volontairement la mort a antrui constitue un homicide ou un meurtre, el non un suicide ou un acte de complicate de suicide ; gue I? meurtre ricst excusable que dans les cas prevus par les art. 321 et 322 du Cod? Penal ; que Vhomicide ne cesse, d'etre con- sidere comme un crime on un delit que lorsqu'il a ete le resultat du commandement de la loi et de Vaatorite legitims, ou de la necessite actuelle de la Ifyilime defcnss de soi-meme ou d'a'u- triti ; qiCrt in,porte pcu qus la mort ait ete donnee du consmte- ment, par provocation, ou par Vordre de la personne homicide?, puisque cc consmtement, c/'.tte provocation ou cet ordre n3 constituent ni un fait d'excuse aux termss des articles precite*, ni une circonslanc? exclusive de la criminalite dz faction aux termes des articles 321 et 327 du Godz Penal que les lois qui proteycnt la vie des homm*,s sont d* ordre public; qus les crimes et delits centre les p.rsonnis nz blessint pas monis Vintsret killed by another, it i? not less true of him who causes the death of another that he is nob aocesgoiy to suicide, but the author of voluntary homicide, since he has realised in himself and through himself the two elements which constitute the crime, the act of homioido and the will of killing. (#) Not indeed, as Friihwald erroneously says, because it falls under the title of com- plicity in homicide, but because it falls directly under the title of homicide, as stated exactly by Herbst and Geff ter. The person killing a consenting person is the true and personal author of the homicide, and a voluntary author, different from him who has helped in the suicide of another and who only does pteparatory acts. In the first case the deceased was a mere passive subject in the criminal act, in the second caso he was a real active primary subject of the murdoroiis act. 18 Carr. Prog Art,, 1157.. (a). HOMICIDE BY CONSENT IS NOT MURDER. "s. 2D2. general de la societe que la surete indivlduelle des citoyens, et qu'aucune volonte part iculi ere ne saarait absoudre et rendre licite le fait que les lots out declare punissable, sa?is aufres conditions ni reserves que celles qu'elles ont expressement etablies 19{r) The effect of this is that consent is quite ignored as it is not statutorily recognized as an excuse, on the ground that an agreement embodying it must be considered as tainted with immorality. This view, however, has been objected to, Adolphe and Helie being strong advocates against it. In their work on the theory of Code Penal, 20 they point out that the consent of the person killed is not claimed to be an excuse of homicide, but to be an essential condition affecting that offence, an essen- tial constituent of homicide, and say : Vous voulez ejfacer, pour ainsidire, etreputer non write, coinme vous le feriez d'une clause ilUgale, rune des circonstances essentielles de c.ette action! Mais eomment apprecier la moralite d'un fait si vous le divisez ? com- ment le juger, si vous refuwz de prendre en consideration Vun ou I'autre de ces elements, id faction rnnterielle tout enfiere, la les causes qui Vont provoque3 ? L*acte que vous jugerez ne sera plus (]iCune fiction; vous aurez les apparences d\m crime, mais ces apparenccs seront As to the taint of immorality, the learned authors further observe that consent is not ignored on account of immorality in cases of indecent assault, that the immorality of an act ought not to bs confounded with the criminal will of its doer, and (r) That the act by which a person voluntarily causes the death of another constitutes homicide or murder, and not suicide or an act of complicity in suicide ; that murder is excusable only in the cases provided for by Arts. 321 and 322 of the Code Penal, that homicide ceases to be considered as a crime or a delit only when it has been the result of a command of law and of legitimate authority, or of the actual necessity of the legitimate defence of oneself or another ; that it matters little that death has been caused by consent, by provocation, or by the order of the person killed, since this consent, this provocation or this order does not constitute an act of excuse in the terms of the Articles quoted above, not as a circumstance exclusive of the criminality of the act in the terms of Articles 321 and 327 of the Code Penal ; that the laws which protect the life of men are of a public order ; that the crimes and delits against individuals no less injure the general interest of society than the individual security of the citizens j and that no particular wish would ab-.olve and reader lawful the act which laws have declared punishable, without othei conditions or reserves than those which they have expressly established. (a) You wish to efface, as it were, and hold as not written, as you would an illegal clause, one of the essential circumstances of this act. But how appreciate the morality of an act if you divide it ? How judge of it, if you refuse to take into consideration one or the other of these elements, here the act physic il all eutire, there the causes which have provoked it ? The act you will judge of will be no move than a notion ; you will have tht> appearances of a crime, but these appearances will be false. 1B HI. Adolph. & Heiie., 479. 2O TIT. 487. S. 202.J .HOMICIDE BY CONSENT IS NOT MURDER. 39-7 that a fact which destroys the criminality of an act cannot be ignored from consideration in determining its penality. L 'accuse, they observe in another place, de viol qui s' excuse en disant qii'il arait seJu/'t la victime, doit-il moins etre entendu ? Le faussaire qui excipe de la nullite qui, a son insu, entache Vacte falsifie n'est-il pas admis a prouver cette nullite qui, en rendant le pre- judice impossible^ ate au crime Vun de ses elements 1 2Ut) One ground urged against the conviction for murder in these cases was that there would not have been any crime if the sur- vivor had succeeded in killing himself as he had proposed, and a crime could not result from the chance which had spared his life. The Court of Cassation overruled that con- tention on the ground that in case of the offender's own death, justice would remain inactive only as his dead body could not be punished ; but le fait n j en reste pas moins avec la qua- lification qui lui ap part lent, et,sil asurvecu, la justice est saisie. (u) In an arret, dated the 23rd June 1338, the court, with reference to that contention, further said : que la criminalite de I'acle resultait, independammmt ds toute circonstance posterieure a sa perpetration, du concours de la volonte homicide et du Jait qui en a ete la consequence', que la mort de Vinculpe n'aurait eu d'autre effet que de prevenir ou d'arreter la poursuite de cet acte, sans le depouiller de son caractere criminel ; qu'on n'e#t pas mitux fonde a pretendre qiCun attentat sur une tierce personne, sui< i d'une tentative de suicide, Pun con- sent, et m$me provoque par la victims, Vautre efftctue par le ineurtrhr, ne presents d'autre caractere que celui d'un double suicide ; qu'il ny a de suicide que dans le sacrifice qu*vn fait de sa -propre xie et que ce sacrift.ce m donne pas le droit de disposer de \a vie d'autrui. 22 (p) (t~) Should the person acoused of rape be heard less if he excuses himself by saying that he had seduced the victim ? Is a forger who pleads the nullity, whic-h unknown to him taints the forged deed, not allowed to prove this nullity, which by rendering the harm impossible, takes away from the crime one of its elements? (u) The act does not remain less under the designation whioh appertains to it, and if he survives, justice takes hold of him. () That the criminality of the act resulting independently of every circumstance subsequent to its peipetration, from the co operation of the homicidal will and of the act which has been the consequence of it, that the death of the accused oould have no effect other than that of preventing or stopping the prosecution of this action, without depriv- ing it of its criminal character; that there is no more ground for contend! ug that an assault on a third person, followed by an attempt of suicide, the one consented to and even provoked by the victim, the other effected by the murderer, do not present any character other than that of a double murder ; that there is no suicide except in the sacrifice which one makes of his own life ; and that this sacrifice does not give him the right of di -.posing of the life of another.. III Adolph. & HeMie. 524. | 22 III Adolph. & Helie.,481. 393 HOMICIDE BY CONSENT IS NOT MURDER. [s. 202. It is generally urged, however, that whatever might be the gravity of the act, it was committed without violence and without wickedness, that the doer of the act had in causing death not wished to injure any one, that he had believed himself to be rendering service, and had acted only on the solicitations and entreaties of the deceased ; that for murder it was necessary that there should be a criminal intention and a criminal will, that the intention or will to kill was not necessarily always criminal, that there were several cases in which the intention or will to kill was not criminal, and that for the criminality of the intention or will ifc was necessary that it should be to injure some one by causing his death. In support of this view it is said that the soldier who fires and kills a person under the order of a proper authority, and the citizen who kills an assailant in self-defence, have the intention and the will to kill, and yet the homicide in both cases is held to be free of all criminality. This will revet ensuite des nuances differentes qui impriment aux fa-its qu'elle commet des degres divers dans Vechelle de la criminalite. Aimi celui qui a longtemps pre- pare V homicide qii'il consomme t celui qui ne Vaccomplit que dans ^inspiration d'une pas&ion perverse mais instantanee, celui qui n'en a puist la pensee que dans les coups ou les bltssures graves qui ont provoque sa colere, ces trois agents ont ecjoletnent eu lavolonte de tuer, et cependant cette volunte differe de Vun a Vautre. Combien les circonstanc.es ou elle s'est produite lui impriment un caractere distinct ! Quell e barriere infranchissable separe les actes qui I 1 ont manifestee! 27ltr) Adolphe and Helie in another place in their work on the theory of Code Penal observe that it is not sufficient for the crime of murder or of assassination, that the will of killing has been in the contemplation of the doer, for this will is not essentially criminal; but that it is necessary that it should have been born of wickedness and the desire of causing injury, and that the commission of a crime should have been contemplated. They go ou to say: or cette volonte criminelle (w) Finally assumes different shades whiuh imprint on acts committed by it different degrees of the scale of criminality. Thus, he who ha-, for a long time prepare-] for the homicide which he consummates, he who accomplishes it only on the inspiration of a perverse but instantaneous passion, he who has taken the idea of it only from the blows or serious wounds which have excited his anger, these three agents have equally had the will of killing, though this will differs in each case from the other. How much do these circumstances whence it is produced impress it with a distinct character ! What an, insurmountable barrier separates the acts'by whioh it has been manifested. 7 III. Adolrih. & Ht-li.> 521. S. 202.] HOMICIDE BY CONSENT IS NOT MUKDEE. existe-t- elle quand une convention lie V agent et la victime ? quand celui-la iiagit que sur I'ordre de celle-ci? quand les deux volontes se reunissent et concourent dans la perpetration de F homicide ? II est evident que cefait modijle entierement la criminalite de V action : elle ne prend plus sa source dans la violence, dans la cupidite, dans les plus odieuses passions ; tfest une fausse pitie, c*est un devotiementmalentendu qui F inspire. L* agent puise son interetnon plus dans la satisfaction de sss desirs personnels, mais dans Vinteret de la satisfaction de la victime : il est visible que son action differe de Vassassinat comme la f ante lourde da dot, commele prejuge du crime, comme fignorancs grossiere d'une volonte coupable. 11 a voulu la mort de la victime parce qu'elle la voulait elle-meme il a prete son bras a V execution de riwmicideparcc qu'elle implorait son aide ; mais il n'en avait pas concu la pensee avant son impul- sion^ il ne V avait point meditee en secret ; aucun interet, aucune passion ne Vanimait ; la resolution etait immorale sans doute, mais elle n'etait pas criminelle dans le sens de la loi penale ; il avait la volonte de tuer, mais il n 9 avait pas la pensee qu'il put nuire en otant la vie a celui qui voulait mourir ; son action est coupable, la conscience la reprouve, la societepeiit la punir t mais c'cst avec une autre qualification que celle du meurtre ou de Speaking of a person committing homicide by consent, they observe : Faut-il, dans I'horreur que son acte nous inspire, Visoler du concours qui lui a ete donne, pour en faire un crime a part ? Faut-il faire abstraction de cette volonte dont elle s'est faite ^instrument, de cette influence qu'elle subissait, pour n'aper- ceiwir que sa seule action, distincte et separee des causes qui Cont produite ? En un mot, cet acte n'est-il a son egard qu'un acte de complicite de suicide; et, s'il faut lepunir, est-ce seulement comme (o>) Now does this criminal will exist when a convention binds the doer and the victim? When does the former act only on the order of the latter? When do the two wills unite and co operate in the perpetration of the honiioide ? It is evident that this act modifies entirely the criminality of the action : it does not any more have its source in violence, in cupidity, in the most odious passions ; it is a false pity, it is j\ misunderstood devotedness which inspires it. The doer does not derive his interest any more from the satisfaction of his personal desire, but from the interest of the victim's satisfaction : it is clear that his action differs from assassination as a gross blunder from malice, as prejudice from crime, as gross ignorance from a guilty will. He has wished the death of the victim because the victim himself wished it, he has lent his hand to the execution of the homicide because the victim implored his aid ; but he had not conceived the idea of it befoie its being suggested by the victim, he had not meditated it in secret ; no interest, no passion, no animation ; the resolution was immoral without doubt, but it was not criminal in the sense of the penal law ; he had the will to kill, but he had not the will to do an injury in taking away the life of him who wished to die ; his action ia guilty, conscience reproves him, society can punish him, but under a designation other than that of murder or assassination. * III Adolph. & Helie, 486. 40A PENALITY OF HOMICIDE BY CONSENT. [S. 203. une faute grave, une haute imprudence, une imperitie grossiere? Ou bien doit-on, en effaqant les circonstances qui Ventourent et le modijient, le considerer comme un crime complet par lui-meme, comme un homicide volontaire et delibere f 29 w) R. Garraud says 30 that it is sufficient to constitute murder that V agent ait eu la volonte de tuer ; but there is a distinction between an intention of killing and a -motive of homicide, and the French penal law does not take motives into account. It considers him as a murderer, as he had the homicidal will, without p re-occupying itself with knowing quel but il a cherche et dans quelle intention il a agi. (z) 203. Even those who maintain, that suicide is not murder, do not deny the penality of homicide by General consensus as consent. Thus Adolphe and Helie ex- to penality of homicide ssl disclaim all intention of mitigating by consent. f, J ,. ,, , . . , ,7 , the penality or homicide committed on the demand of a person, and say : Loin de la, notre pensee est que ces deux actes revtlent une honteuse immoralite, que non- seidement Us outragent la morale, mais menacent la societe elle-meme, et que la societe pent les punir, car elle a la mission de velller a la securite indimduelle des c.itoyens et de proteger leur viememe contre leur propre In discussing the question of the penality of homicide by consent, Francesco Carrara in his Programma DelGorso di Diritto Criminale t says 32 Pretendere che la uccisione del conse-nziente non possa incriminarsi perclie clii lo uccise credette di fargli un bene- fizio, innanzi tutto converts unaiperbolefantasticain unarealta. Ed oltre a do partirebbe da un prmcipio che non pud senza pericolo ammettersi come precedente nella materia penale. Colui (y) Is it necessary in the horror with which his act inspires us, to separate it from the co operation which has been given to it, in order to make a crime of it in itself ? To separate it from this will of which it has made itself the instrument, from this influence to which it has submitted, in order to perceive only his act, distinct and separate from causes which have produced it ? In a word, is not this act in regard to him only an act of complicity in suicide ; and if it is necessary to punish it, is it only as a grave fault, a great imprudence, a gross unskilfulness ? Or else one ought, effacing the circumstan which surround and modify, to consider it as a crime complete in itself, as a voluntary and deliberate homicide. (z) What end he has had in view, and with what intention he has acted. (a) Far from that, our thought is that these two acts reveal a shameful immorality, that they not only outrage morals, but menace society itself, and that society can punish them, for it has the mission of watching over the individual security of citizens and of protecting their lives even against their will. 99 III Adolp. & Helie 483. I si ni Adolph. & Helie, 481. 80 IV Gar. Dr. Pen. 318. sz S> 1408 j n j t S. 203.] PENALITY OF IIOMICIDE BY CONSENT. che ha rubato al vicino la came in un venerdi, pub dire io lo fed per impedirgli di peccare. Colui che ha adulterate con la donna del vicino inutilmente desideroso di prole, pub dire io lo fed per procacciargli la consolazione di un fiijtio. Sotto cento facce potrebbe riprodursi cotesta fallace dottrlna se &i ammettesse come raf/ione d'impunita il pretesto di aver voluto recare un bene all 'ahr'uomo mediante la (esione dei suoi diritti. (a) German Jurists have advocated the penality of homicide by consent on the ground, that it is an offence against the puhlic, as well as against the private individual, and consent cannot affect it in its former aspect. Lion thus observes : Da die Totuny mlt in der Verletzung des Privatwillens, zuglelch aber in der des allgemeinen Willens sich als Verbrechen darstellt, 1st bei der Todtunij mlt Einicilligung nur jenes konkrete Verbrechen nicht vorhanden. 33 (a) Breithaupt in expressing his approval of that observation, remarks that the word concrete can refer only to the violation of the subjective will. In his work on Volentl non fit injuria* he explains the grounds of the penality of ho- micide by consent, and says : "He who kills another with his consent undeniably violates the order of law. There is certainly no offence in this case so far as the private will of the killed person is considered ; and the maxim Yolenti non fit injuria is therefore applicable to that extent; but it must not be inter}) re ted so as to signify that the killing of a consenting person contains no violation whatever of a right, and signifies only that so far MS the consenting person is concerned there is no injury, or the act of homicide is not illegal. The state has in regard to public offences (Rechtsverbrechcri), arid especially in the case of homicide, an absolute right to place its will above the private will. It has the right to declare itself injured or endangered even when the individual consenting (Rechtssubjekt), who is directly deprived of an interest (no) To claim that the killing of a consenting person cannot be charged with criminality as he who kills him believes to have done good to him, is rather to convert a fantastic hyperbole into a reality. Moreover, it would be starting from a principle, which cannot be admitted in penal matters without danger. He who has stolen meat from a neighbour on a Friday can say " I did it to prevent him from committing a sin." He who commits adultery with the wife of a neighbour who has desired in vain to have issue, can say " I did it to procure for him the consolation of having a child." This fallacious doctrine can reproduce itself in a hundred forms, if the pretext of having worked to do good to another person by means of an injury to his rights is admitted as a reason for impunity. (6) As homicide appears as an offence, both in the injury to the private, as well as at the same time to the public will, so is there wanting in homicide by consent only the former concrete offence. s I Lion, G. A., -132. J '* PI 43. 50 402 HOMICIDE IN A DUEL. [S. 204. (Rechtsquf), has declared himself to l>e agreeable to it. The law of a country cannot permit to its citizens, that they should, by mutual consent, take each other's lives, quite according to their own free will, and thereby endanger the integrity of the State. It, therefore, justly threatens homicide by consent with punishment. For, if there were absolute immunity from punish- ment for that offence, there might finally take place such a diminution of useful citizens, that a favourable development of the State would be impossible. It follows, therefore, that the will of the killed person alone cannot be decisive with regard to the criminality of the act, as we have at the same time to deal with interests which are removed from his one-sided and exclusive power of disposal (Verfiiyungsgewalt'), and that as the will of the killed person can give no absolute authority to kill, so the act can in no case remain entirely free from punishment.*' 204. The question of the psnality of homicide by consent has arisen sometimes in cases of duelling How far homicide in 7 r ,\ T? r i, i i TV a duel is murder. a 1 lso -. In ., tie English ^law, deliberate duelling, if death ensues, is, like all homi- cide by consent, deemed murder. It has been alleged, on the one hand, that there ought to be much less objection to treat such duels as murder than the cases of killing a person at his request, as the former are generally founded in deep revenge. " And though a person should bs drawn into a duel, not on a motive so cruel, but merely upon the .punctilio of what the swordsmen falsely call honour, that will not excuse him. For he who deliberately seeks the blood of another in u private quarrel, acts in defiance of all laws, human and divine, whatever his motive may be." 33 And in any case in a duel the will of the offender is a guilty will, it foule aux pieds La justice dont elle dedaigne les reparations, la societe, dont elle trouble Vordre et, la paw, la vie humaine quelle sacrijis auec legerete a ses passions. It may however be contended, on the other hand, that in a duel there is usually no intent to actually kill the adversary, but only to do an act which may lead to the death of the other party as well as of oneself, And though it is an evil of duelling, that it "entrusts the punishment of injuries to the chance of combat, or the coolness of premeditation, and exposes the person who has suffered an injury to the additional and greater evil of becoming a murderer, or being murdered;" and a point of the duellist's offence is 35 Kos Cr. Evlcl. 740. S. 204.] IIOMrciDE IN A DUEL. that he takes up justice in his own hands, that he attempts to place individual justice over public justice, and private vengeance in lieu of punishment by constituted authority. This will though guilty, this culpability though grave, does not amount to murder. Both the parties take an equal risk, and though the motive may not be sufficient to justify homicide, yet it may well mitigate that offence. Indeed, the criminality of the duellist appears to be essentially distinct from that of an assas- sin, both in regard to the moral gravity of the act and its material consequences. There is no general alarm created by the death, which, so far as that goes, may be deemed as a sort of suicide ; as no one need be afraid of it unless he agree to fiht, These considerations, however, are not considered sufficient in England to exclude homicide in a duel from the category of murder. So far is the rule carried, that in Reg. v. Cuddy?' it was held by Williams, J., that where two persons went out to fight a duel, and death ensued, all persons who were present encouraging and promoting the death were guilty of murder. So also in Reg. v. Young* 7 the indictment was for murder, and Vaughan, B., said : u When upon a previous arrangement, and after there had been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder, and the seconds also are equally guilty." After observing that neither of the prisoners had acted as a second, he continued ; "if, however, either of them sustained the principal by his advice or presence; or if you think he went down for the purpose of encouraging and forwarding the unlawful conflict, although he did not say or do any thing, yet if he was present and was assisting, and encouraging at the moment when the pistol was fired, he would be guilty of the offence charged in the indictment." The provision of the Canada Criminal Code, declaring that consent will not excuse homicide, adds an illustration to the effect that if A and B agree to fight a duel together with deadly weapons, and either is killed in the duel, his consent will make no difference as to the criminal responsibility of the other. 1 C. & K., 210. | 8 C. & P., 044. 404 HOMICIDE IN A DUEL. [g. 204 The Code Penal being silent as to duels, the Court of Cassation in France now takes the same view as is taken by courts in England. In an arret dated the 22nd December 3887, it even held that the homicide committed and the wounds inflicted in a duel could be imputed not only to the combatants themselves as principal authors, but also to the witnesses of the duel as accomplices. It was sometimes contended, and in prior cases even held, that homicide in a duel was not punishable in France, but this was only on the ground that the Code Penal did not con- template such homicide, and rightly so as the punishment provided for assassination or even murder in the Code was too heavy for a duel. This is chiefly on the ground of the character of the will inducing to a duel, and the mutual convention which takes place between the parties before the homicide is committed. The will is no doubt generally of killing, but not with any evil motive, not necessarily even for gain, cupidity or revenge. Chez le duelliste, la volatile de tuer n'est qu' accident elle et secundaire, souvent meme die rfeniite pas ; ce qu'il demande, ce qiCil veut, c*est de laver son honneur souille ou de le maintenir intact (o) The convention is not claimed to operate as a general excuse, but merely to negative that absence of the consent of the person killed which is an essential part of the criminal intention which alone can constitute the offence of homicide. Adolphe and Helie in their work on the theory of Code Penal say : 3y Cette convention n'est ni une excuse, ni un contrat ; elle n'est qa'ime circonstancs intrinseque du fait elle en fait partie, elle le inodijie, elle le caracterise. It est impossible cVen faire abstraction dans V appreciation du duel, car on prononcerait alors, non plus sur le fait lui-meme, mais sur une fiction, non plus sur la eriminalite rcelle de V agent, mais sur sa eriminalite supposee. La convention doit etre appreciee, non comme une obligation qui lie les parties, sous ce rapport elle est illicite et mdle ; non comme une excuse qui attenue le crime, car ^excuse le modifie et le laisse subsister ; mais comme une circonstance substantielle dufait, circonstance (c) With the duellist, the will of killing is only accidental aud secondary, often it docs not even exist ; what he asks, what he wishes is to wash his soiled honour, or to maintain it intact. s * III A.lolph. and Helio, 522. I 39 III. 525. S. 205] HOMICIDE B CONSENT PENAL IN INDIA. 405 e sia per cotesto punto di vista specialmcnte 45 S- 207. | *G s. 208. | " Art. 1403 (n). S. 209.] EFFECT OF CONSENT ON VOLUNTARY CAUSING OF HURT. contemplata come delitto sui gensris dalla leqge vegliante. (f) Similarly, 142 of the German Penal Code provides punish- ment for every person Wer sich vorsatzlich durch Selbstver- stiimmelung oder auf under e Weise zur Erfullung der Wehrpflicht untauglich macht oder durch einen Anderen untauglich machen lasst. (y) And in cases in which the injury to oneself is not an offence, an abetment of that injury by another is also not an offence. 48 209. There is a greater conflict of opinion as to the effect of consent on the voluntary causing of hurt Voluntary causing of to another . It is som etimes considered hurt to another as -, ,, . , , , T rr/v? affected by his consent. to be generally punishable. In Wtileyv. Carpenter, 49 Thompson, J., in delivering the opinion of the Supreme Court of Vermont even said, that " if the consent of a person to a moderate assault and battery upon him were a justification, we see no reason why consent to one so great as to take his life would not also be a justification." This is the view generally taken in France and Italy. Thus R. Garraud says that the mutilation practised on a person with his consent is included in the provisions for the punish- ment of injuries to persons, and that this is in accordance with the general principles of law, as the consent of the person to whom hurt is caused does not avoid the intrinsic criminality of the delict of causing hurt ; and the person causing it would in vain invoke in his defence the maxim volenti non fit injuria. Ce riest pas dans Vinteretseul des particuliers que la sotiete punit ; elle repriwe les attentats contre les personnes, parceque ces atten- tats atteignent la collectivite elle-meme, et nul ne pent autoriser a violer en sa personne les lois qui inter essent I'ordre public. He continues that if -the consent of the injured party does not destroy the criminality of the act, it no more effaces the cul- pability of the doer, for the culpability results only from the will of committing an action of which one knows or can know the criminal character. 50 Similarly Francesco Carrara observes that La lesione del consenziente e sempre una lesione personate, la quale (/) The injury to oneself is, as a rule, not punishable, except when it is directed to injure the rights of others, and if it he from that point of view specially contemplated as an independent delict by the law in force. (tj) Who intentionally by self-mutilation or in some other way, makes himself unfit fo the f ullilment of conscriptional duty, or allows another to make him BO. * s Carr. Prog., 1108 (u). | * n 15 L. A., 853. 5 IV. Gar. Dr. Pen., 357. 51 410 EFFECT OP CONSENT ON VOLUNTARY CAUSING OF HURT. [S. 2O9. di regola deve punirsi ; tranne che, per le rec/ole generate della impulazione, possa questa eliminarsi per vera mancanza di dolo. 1 (h) In Germany, Halschner, Liszt, Oppenhof, Hepp, Geyer, Riidorf, and Breithaupt maintain that consent does not oper- ate to remove the criminality of acts causing bodily injuries, and that such acts are criminal, even when done with the con- sent of the injured person. Breithaupt, in his work on Vulenti nonfit injuria? a thus says : ''(Homicide) if viewed externally, i.e.t according to its effect, is nothing but an intensified bodily injury. If the State has the right to punish the former, we must admit its right to punish the latter which is merely to be looked upon as a stage (Stadium') of the former. Even if viewed from the same economical point of view, which we have laid stress on in the case of homicide by consent, the State cannot permit that its citizens should mu- tually deprive each other of their bodily integrity according to their own free will. If the state requires for its existence the lives of its citizens, so must it also consider it necessary that they should live in such a manner that their bodily health may permit them to go about their business, to fulfil their duties towards their fellow- creatures and the State, in order thereby to remain useful members of society. For just as it is impossible for the State to exist without citizens, so is this existence equally impossible if the citizens indeed live, but for example only do so in a crippled or impotent manner ; and therefore the legislator cannot in an unlimited fashion permit bodily injury with consent If this were the case there might arise a want of people suitable for military service, which would be highly important, and a great deal of mischief might also be caused by the free practice of quacks. The State therefore justly wishes to prevent the appearance of such a state of affairs endangering the public safety ; and it cannot therefore take into consideration whether this appearance is due to the consent of the directly injured party in such a case, or not. The generally injurious effect is the same in both the cases, and in both c;ises the State has the right to look upon it as an infringement of the law." II. .nakes no distinction between severe and slight bodily inji.nes, and goes on to observe: (h) The injury to a consenting person is always a personal injury, which, as a rule oujjlit to be puuished ; except when the general rule of imputability can exclude the punishment on account of the real want of dohis. 1 Curr. 1'rog., Art. 1108 (n). J 1 a P. 88. S. 209.] EFFECT OF CONSENT ON VOLUNTARY CANSINtt OF HURT. "According to these points which have been generally develop- ed, the State cannot on princip! make any difference whether there is a severe bodily injury or a slight one. For first of all, in many cases it is difficult to decide at the very outset, whether an injury which has just taken place is slight or severe, as a decision on the point can frequently he given only after' the completion of the healing process ; and secondly it is possible that a person to whom a slight bodily injury has been caused may be just as incapable under certain circumstances of fulfilling his civic or State duties respectively as one who has suffered a severe bodily injury." The Reichsgericht also takes the same view, and in its judgment dated the 15th November 1880 held that die Korper- verletzung mit Einwilligung print ipaliter zu strafen sei, und zwar ohm Unterschied, ob sie leicht oder schwer ist, und dass die entgegengesetzte Ansicht unrichtig ist. (a) Apart even from the doctrine of the inalienability of rights, it appears, however, to be clear that the effects of slight or ordinary hurt can hardly go beyond the person injured, while grievous hurt may often prevent him from working for and discharging his duties to society. As a general rule, a person is therefore held incompetent to consent to such injury as will directly interfere with his discharge of his duties to the State, or as is so severe that it must interfere with them. Thus Stephen in his Digest of Criminal Law 2 lays down that one has a right to consent to the infliction upon himself of bodily harm not amounting to a " maim," which for the purposes of this rule is ' bodily harm whereby a man is deprived of the use of any member of his body or of any sense which he can use in fighting, or by the loss of which he is generally and permanently weakened." This distinction was recognized even in the English Common O O Law, in which mayhem was always considered an in- dictable offence. Thus Lord Coke, observing that the life and members of every subject are under the safeguard and protection of the King, referred to a case, in which " one \Vright, a young, strong, and lustic rogue, to make himself (i) Bodily injury with consent is to be punished on principle, and indeed without any difference as to whether it be slight or severe, and that the opposite view is incorrect. a Art., 227. 412 EFFECT OP CONSENT ON VOLUNTARY CAUSING OF HURT. [3. 209 impotent, thereby to have the more colour to begge, or to be relieved without putting himself to any labour, caused his companion to strike off his left hand, and both of them were indicted, fined and ransomed therefor." 3 So East in his Treatise on the Pleas of the Crown, says ': "The statutes of H. 4. H. 8, and Car. 2 are evidently directed to the maiming of others ; but a person who even maims himself, or procures another to maim him, that he may have more colour to beg ; or disables himself to prevent being pressed for a soldier ; is subject to fine and imprisonment at common law ; and so is the party by whom it was effected at the other's desire." So also Dr. Bishop says 5 : "It being the gist of the crime in mayhem that the injured person is rendered less able in fighting, one may not innocently maim himself ; therefore, if at his request another maims him, both are guilty." On the other hand, Binding, Wachter, Schwartze, Ortmann, Zimmermann consider that even the severest bodily injuries will be excused if caused with the consent of the injured person. Olshausen has also taken that view in his Commentary on the German Penal Code. Commenting on 223 dealing with the offence of causing hurt, he says 6 that the force of the maxim volenti non jit injuria is indeed gerade bei Korperver- Itzgen sehr bestritten, allein wahrend die Natur gewisser Delikte der Anwendung iener Regel geradezu widerstrebt, I'cisst solches von der Kdrperver letzung sick nicht sagen ; im Gegentlieil ist die vollige Versajung ihrer Anwendbarkeit avf alle Korperverltzgen entschieden dem allgemeinen Rechtsbe- wusstsein zuwider, so wenig dieses freilich billigt, dass auch schwere Korperverltzgen ( 224 22 5J in Folge ertheilter Einidlligung des Verletzfen straflos bleiben. Zunachst ist hervorzuheben, dass die Bestimmungen der 223/T. nur im In- ter esse des unmittelbar betroffenen Individuums gegeben sind, wie daraus hervorgeht, dass nur die Korperverletzung eines Anderen bestraft wird ; die Vorschrift des ( 142) wonach ausnalimsweise die Selbstverstiimmelung strafbar ist, best(it/icidio del consenziente. In tema di lesioni per sonali il dolo pub dirsi insito " in re ipsa?\ Allorche si mutila, si deturpa nella faccia una donzella col consenso di lei che vuole in tal guisa soddisfare alle gelose esigenze del suo amante, o quando si eiira, sia pure col consenso della vittima, sia pure per recare un mntaggio economico al paziente, per questo fatto il paziente rimane imperfetto, la donzella diventa deforme^ e tutto cib Vagente lo sa, lo conosce, lo vede. Il legislator e ne pud nedeve tolterare lo sconcio gravissi- mo, che, specie neWevirazione, e contrario ad un precetto naturale d'ordine supremo. (*) In Germany also, Merkel, Schaper and some other jurists hold a middle opinion, namely, that consent excludes penality, but only in the case of slight injuries. 210. The same view has been adopted in India also, and appears to be sound, at least from a practical In Indian Cnrni- p O j n t o f view. All harm is a priori an nal law, consent ., -, , . , 11 justifies every hurt evil > and a wis p legislature cannot allow other than grievous, any person to inflict it on any other, or even to suffer or take the risk of it himself, except when it is only slight, and is not intended or known to be likely to result in a permanent injury. (It) It is said that such acts ought not to be punished owing to the innocence of the aim which excludes dolus wherefore it is necessary to remove every idea of criminality from an act done for the legitimate aim of freeing a human being from a morbid affection or from a deformity or from a danger to his health. And so far, and this with right, (it is added) that every time that we imagine to ourselves a criminal intention in the injury consented to, we proceed without hesitation in recognizing its political imputability. It appears to me that the supporters of the imputability of such injuries are more in the right; for no reason could be found for not imputing it to them, when the killing of a con- senting person is imputable. As regards personal injuries, the dolus can be said to be innate iu the offence itself. When we mutilate or disfigure the face of a girl with her consent in order that she may thus satisfy the jealous demands of her lover, or when emasculation takes place, whether it be with the consent of the victim, or in order to procure econo- mical advantage to the patient, by this act the patient remains imperfect, the girl becomes deformed, the doer knowing, recognizing, and foreseeing all this. The legislator neither can nor ought to tolerate such a grave misdemeanour which, particularly iu emasculation, is contrary to a natural precept of supreme order. 416 EVEN GRIEVOUS HURT JUSTIFIED IN CERTAIN CASES. [S. 211. This is provided for by S. 87 of the Indian Penal Code, which lays down that " nothing which is not intended to cause death or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person above eighteen years of a-e, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm." The section, as originally drafted, contained an exception only in favor of the harm intended or known by the doer to be likely to cause death. B.Comyn objected that " the public are surely interested in the preservation of the limbs as well as the lives of the Queen's subjects ; and if such a state of society can be imagined as that in which one may allow another to inflict upon him any bodily injury short of death, it would well become the legislator to step in and save persons from the consequences of their own free and intelligent consent. In a country thoroughly civilized, a law such as is indicated by clause 69 (now S. 87) would in all probability be a dead letter ; but in India, where so much self-infliction and voluntary torture are resorted to, it seems necessary to protect men from themselves, rather than offer impunity to those Avho are assisting in their sufferings." The words referring to grievous hurt appear to have been added with reference to that objection, though the Commissioners did not consider it of much weight. 211. Consent may, however, under section 87, justify acts which cause grievous hurt, provided they are Even grievous not mte nded or known by the doer to be likely unit nistined incer- -. .-, J i ,, ' tain cases by con- to cause death or grievous hurt, even though sent. the doer may have had reason to believe, or actually believed that death or grievous hurt would be caused by them. The section is not restricted, however, to acts which actually cause harm to the consenting person, but extends to all acts, which, though not actually causing harm, are intended to cause the same. This will be the case mostly with acts which may be an offence without causing harm, simply because of the intention to cause harm with which they are accom- panied, as well as with acts w r hich on that account are of the nature of the attempt of acts which can be offences by reason of the harm caused by them. Thus assault, mischief, criminal trespass, and defamation may be mentioned as S. 212.] TAKING RISK DISTINGUISHED FROM CONSENT. 4]^ instances of offences in which the acts constituting them will be criminal without causing harm to a person, if done with the intention of causing harm to him. 212. The exemption created by the section further refers not only to acts that cause harm or are intended Taking risk of to cause narm which a person has consented to harm con trasted . , , l ,, , , , with consent to suiter, but also to acts that may be known by suffer harm. the doer to be likely to cause harm to a per- son who has consented to take the risk of it. In the case of such latter acts, no harm is intended and therefore contemplated, which could be consented to, but there is only a risk of some harm, and therefore the consent can be only to take thai risk, Considerable difficulty has arisen sometimes from not making a sufficient distinction between consenting to a harm and taking the risk of that harm. Strictly speaking, as pointed out above in S. 93, a man can be said to consent only to the act causing the harm. It is only in popular language, that a person can be said to consent to certain harm, and he is said to do so when he knows that the harm must accrue to him from some act he has consented to, and does nothing to avoid or avert it. He is, on the other hand, said to take the risk of that harm, only when he does or consents to another person doing some act he knows to be likely to result in the harm which, however, he not only does not consent to suffer, but wishes, hopes or even tries to avoid or avert. Nor is this confusion restricted to India. It is noticeable even in the writings of jurists in other countries. Thus Kessler in his work 011 Consent 10 refers to an American case in which a publicly appearing marksman in the case of a Tell-shot penetrated the skull of his assistant instead of the apple on his head, and was acquitted. I have not been able to trace the case in the American reports, but he adds that a German judge would have to do the same, and in support of his view, says: Man konnte sich versucht fuhlen, in dem Falls des Kunstschiitzsn ahnlich zu argumentiren : die Einwilligung bezog sick nur auf das Schiessen bei genauer Richtung der Pistole auf den Apfel, nicht bei Hirer Richtung auf den Schd- del. Dabei wilrde man jedoch ubersehen, worm die Fahrlassiy- keit des Schiitzen bestand. Nicht dass er losdftickte, als das Korn um ein Minimum zu tief in der Kimme des Visirs stand, W:LT falirl'dssig ; denn u:as dem GeschicJctesten bei Anspannung 10 r. us. 53 418 TAKING RISK DISTINGUISHED FROM CONSENT. [S. 212. aller Aufmerksamkeit passiren kann, ist keine Fahrlassigkeit. Dass er es ilberhaupt unternahm, so hart an einem lebenden Menschen vorbeizuschiessen, dadurch handelte er, und zwar im hochsten Grade t fahrlassig. In diese Handlung aber Jiatte der Verletzteeingewilligt. ( ? ) Breithaupt in his work on Volentinon jit injuria 11 denies, however, the correctness of this, and observes that in such a case there could be no consent. He says J)er Kunstschutze, welcher einem Andern einen Apjel vom Kopf schiessen tvill, hat sich von vornherein ganz genau iiber die konkrete Handlung, ncimlich ilber das Herabsch lessen des Apfels, erkldrtj und nur in diese Handlung ist eingeicilligt warden. Da weder der Schiltze noch der Getroffene vorher wissen konn- ten, ob ilberhaupt eine Verletzung eintreten wurde, konnte von eimr vorher ertheilten Einwilligung garnicht die Rede sein resp. musste eine trotzdem ertheilte Einwilligung einer nachher that- scichlich eingetretenen Verletzung gegenuber, von welcher vorher gar keine Rede war, glinzlich wirkungslos sein, iveil diese Ein- willigung nur zu einer ganz andern konkret bestimmten Hand- lung : ndmlich dem Herabschiessen des Apfels ertheilt warden He in fact maintains that there can be no question of consent in the case of offences committed by negligence, as consent can be given only to a definite act; and clearly lays down : 12 Derjenige, wslcherlsich der Gefahr einer Verletzung aussetzt, dJi. sich darauf gefasst macht, verletzt zu werden, keineswe/js als ein ie din Verletzung Einwilligsdnerjuristisch zu behandden ist. (b) Meyer says the same. Halschner also dissenting from Wachter as to the application of the principle volenti non fit injuria, (I) We may feel inclined to argue, that the consent referred sonly to shooting in a straight direction with the apple and not in a line with the skull. We would thereby, how- ever, overlook what the carelessness of the 'marksman consisted in. It was not careless- ness that he fired when the aim was just a little below the mark ; for that is not careless- ness which may happen to the most skilful person in the exercise of his greatest atten- tion. He acted carelessly, however, and in the highest degree so, in the fact that he at all undertook to shoot so hard by a living person. To this act, however, the injured party had consented. (a) The marksman who wishes to shoot an apple off another's head, has from the very outset declared himself regarding the concrete act, . e., the shooting down of the apple, and only to this act consent has been given. As now neither the marksman nor the per- son struck could know beforehand, whether an injury would take place, there can be no question of a consent previously granted, or rather consent even if given could have no effect as regards an injury which actually took place afterwards, and of which of course there could have been no question, because consent had been given to quite another concrete and definite act, namely, the shooting down of the apple. (ft) He who exposes himself to the danger of an injury, i. c , is prepared to bo injured, is by no mean* to be dealt with juridically, as one who consents to an injury. 11 r 2fc 12 p. 23. Li-lu-huch. 318- S. 212.] TAKING RISK DISTINGUISHED PROM CONSENT. says that be who with full consciousness exposes himself to a il auger to his lite does not vet intend to lose it. 14 O ^ The question often arises when the harm in question is death. Mr. Mayne in his work on the Criminal Law of India, 13 in distinguishing between " consenting to death " and "taking the risk of death," says : *'A man consents to death when the infliction of it is a friendly proceeding, which he authorises. He takes the risk of death when it is a hostile proceeding, which he neither consents to nor authorizes, but which he foresees as the possible termination of a conflict on which he is determined to eater." It does not appear, however, that the friendliness or the hostility of the proceed- ing is material to the distinction, which really turns only on the act contemplated, and on the character of the relation of the resulting harm to that act. An act directly contemplated, and the harm resulting from it as a certain consequence, is said to be consented to. A harm only known as likely to result from a contemplated act cannot be said to be consented to, but a person doing that act or allowing that act to be done, with a knowledge of the harm, may be said to take the risk of that harm. In Samshere Khan v. The Empress it was argued against the applicability of the 5th exception of S. 300 to a case of a faction-fight that the party killed did not intend to get himself killed if he could help it. White, J., pointed out, however, that the language of the exception was not confined to the cases where a man consented to suffer death, but extended also to those where he consented to take the risk of death, and said: "Although it was Khoaz's intention to escape death if he could, yet he not the less ran the risk of death, when an armed man he joined in encountering armed men, and he did this voluntarily, and therefore with his own consent." In Queen-Empress v. Nayamuddin Ghose, J., observing that there \yas an obvious distinction between suffering death and taking the risk of death with one's own consent, said : "In the case of a person who is said to have suffered death with his own consent, some definite circumstances both as to time and the mode of inflicting death, consented to as in the case of a suttee should, no doubt, as has been observed by '* XXXIV. G. S., 7. I 1G I. L. R., VI Gal., 154. ls P. (516. ir I. L. R,, XVIII Cal., 494. 420 TAKING RISK DISTINGUISHED FROM CONSENT. [g. 212. Pigot, J., be proved. But I am disposed to think that this rule cannot always apply in the same way in the other case." A duel is often talked of as a case of consent to death, but the consent in that case is only to the act of fighting, and not to the causing of death, though there is a taking of the risk of death. Thus in the very case of Queen- Empress v. Nayamud- 6/m 18 Ghose, J.,went on to observe, that " in the case of a person entering into a duel with another person, both being armed, neither of the combatants specially consents to being killed : each of them hopes to come out victorious, but knows fully well at the same time that he incurs the risk of being killed so in other cases of the kind where two persons in concert with each other deliberately fight with deadly weapons." The same view is taken in Germany. Thus Breithaupt, in his work on Volenti non fit injuria says: " Einwittigung beim Duell bezieht sick ndmlich nicht eigentlich auf die Todtung oder Verletzung, vielmehr ist em jeder Luellant hier bemiiht, diese von sicli abzuwenden und seinem Gegner die Gefahr za bereittn. Beide kdmpfen zugleich zur A/ncendung der Gefahr von sick selbst ; sie haben sick Beide nur in dzn selbstcjewollten Zustand der Nothwshr versetzt, und von dem, der sich icissentlich in die Gefahr begiebt, kann man nur uneigentlich sagen, dass er den eingetroffensn schlimmen Erfolg gewollt und zuvor genehmigt hat. Es lirgt also hier nur eine Einmllic/ung in die allgemeine Angriffshandlung, nicht in die durch dieselbe beidrkte Verlet- zung vc>r." ( " } Kessler also in his work on Einwilligung 20 says tt die achteEinwillicjungallemal in nichts Anderem als i m fVollen der ffandlung, insbesondere nicht im Wollen de? Erfolgesbesteht, so ist es klar, dass das Einlassen auf einen Ziceikampf die 'beider seitige EinwiUigimg in die aggressive Thdtigkeit des Anderen enthiilt." In the corresponding section of the original draft of the Code, the clause " or be known by the doer to be likely to () Consent in the case of a duel does not refer actually to the killing or injury ; either duelist endeavours rather toward off the danger from himself and to expose hia opponent to it. Both fight at the same time trying to save themselves from danger ; they have both only placed themselves in a self-imposed state of self-defence, and it could only be said of one who knowingly exposes himself to a danger that he had willed it or approved of it. There is therefore consent in this case only to the general mode of attack, and not to the injury caused by it. Real consent consists only in the willing of the act, and espe- cially not in the willing of the effect. It is therefore clear that in entering into a duel the mutual cons"nt refers only to the aggressive acts. I. L. K, XVIII CaL, 494. | i" P. 31. | * P. 90. S. 213.] MANLY EXERCISES WITH ARMS. 42 1 cause" was placed immediately after the clause "or be intended by the doer to cause ; " and the clause *' or to take the risk of that harm" after the clause "to suffer that harm." The section was thus evidently very broad, and would include even cases in which, though the harm was caused or intended to be caused, and, therefore, known definitely to the person doing the act, yet might not be known definitely to the person to whom it was caused or intended to be caused, and who, therefore, could not consent to suffer it, but could only take its risk. The Committee of 1854 in their draft submitted in 1856, changed the phraseology of the section, making it as it now stands. They, however, left the same phraseology in the next section intact, and actually introduced it in the section after that, so that the alteration in section 87 must have been deliberate, and could not have been made except for some reason. -No reason, however, is reported as having been given ; and the effect of the alteration can be only to narrow the signification of the section, and to restrict the clause as to the consent to suffer harm to the cases in which the harm is caused or in- tended to be caused, and the clause about "consent" to take the risk to the cases in which the doer of the act may only know that he is likely to do harm. The section would thus exclude cases like that given above, and yet this could not have been intended ; as of the four illus- trations given by the framers of the draft Code, the Committee retained only one, and in that, while the harm caused may have been intended by the person whose act caused it, the person to whom the harm was caused could not have known it exactly, and could, therefore, only take the risk of it. This illustration pro- vides that if A and Z agree to fence with each other for amuse- ment, the agreement implies the consent of each to suffer any harm which in the course of such fencing may be caused without foul play ; and if A, while playing fairly, hurts Z, A commits no offence. In this case A intends to cause the hurt caused, but its nature was not known to the person to whom it was caused, and he therefore could not consent to that harm or take the risk of it. 213. The section, even as it now stands, will cover all those " manly sports and exercises which tend to give strength, activity, and skill in the use or arms, and are entered into merely as private recreations among friends." Thus persons 422 EFFECT OF CONSENT ON ACTS DONE FOR BENEFIT. [S. 214. playing by consent at cudgels, or foils, or wrestling, will be excusable, even if death ensue. For, though doubtless it cannot be said that such exercises are altogether free from danger, yet they are very rarely attended with fatal consequences, and each party has friendly warning to be on his guard. 21 East farther observes in his Pleas of the Crown, that " the reason given by Mr. Justice Foster, for considering such sports as lawful, seems a good one ; because, says he, bodily harm is not the motive on either side ; upon the supposition of which motive, Lord Hale had grounded his opinion to the contrary. To which it may be added, that the weapons ordinarily made use of upon such occasions are not deadly in their nature, unless urged by a malicious and vindictive spirit." He concludes " that where the sport itself is innocent which occasions the death, the possibility of danger arising from it will not vary the case, and convert that which is a misfortune into an offence : yet that where danger may arise, due and ordinary caution, such as is usual under similar cases, ought to be used. That where the sport itself is unlawful, or the motive improper, the offence will be thereby enhanced more or less according to the probability and greatness of the danger." In India the fixing of the age of consent for the purposes of section 87 at eighteen years will, however, prevent ordinary schoolboys from joining in any sports which are likely to cause any harm. 214. The other sections in the Indian Penal Code, dealing Greater effect of con- with the exemption from criminal liability sent on acts done for for harm caused to any person on the benefit of person con- ground of that person's consent, have sentmg. reference to acts done in good faith for the benefit of the person to whom harm is caused by them. In case of such acts, consent is naturally considered an excuse to an extent much greater than in the case of those which are at the best gratuitous and sometimes professedly mischievous, or calculated, and sometimes even intended to do harm. The benefit for the purpose of the rules contained in these sections, and of the general principle on which they are based, should not consist simply of money. Mere pecuniary benefit must usually be quite an inadequate compensation for actual injury to a person, and impunity should not be given to a person causing injury *! East P. C., 268. S. 215.] SUCH ACTS MUST BE DONE IN GOOD FAITH. 423 to a person's life or body, simply because he intends to do him such good, to get him a few rupees, or a piece of furniture, or even to make him richer in money or master of more acres. Such benefit does not appear to be held sufficient to excuse criminal acts in any system of jurisprudence. The contrary doctrine would justify even slavery, rape, or abduction of a woman for forcible marriage, on the ground that those acts would get her money or even make her the master cf a large fortune. The Select Committee appointed in 1854 to consider the draft of the Indian Penal Code, apparently influenced by these con- siderations, added an explanation to S. 92, which expressly provides that mere pecuniary benefit is not benefit within the meaning of SS. 88, 89 and 92 of the Code. 215. Nor is the restriction of good faith less important for the purpose with which these acts are Such acts to be justi- grouped together separately. Bethune's ned must be done in 5 A. jj r t good faith. drait did not exempt from criminal liability any acts other than those done in good faith for the lawful benefit of the person harmed, but extended the exemption equally to all such acts excepting those meant to cause death, whether the consent was given by the person harmed, or, if he was under 12 years of age or of un- sound mind, by his lawful guardian. Within the meaning of the Indian Penal Code, nothing is said to be done or believed in good faith which is done or believed without due care and caution. This qualification of good faith will, therefore, exclude from excuse on the ground of consent, all dangerous opera- tions performed by unqualified persons. "We apprehend,'"' said the Indian Law Commissioners in their first Report on the original Draft of the Code, " that an unqualified and ignorant quack could hardly be excused, for it is not to be conceived that such a one could obtain the free and intelli- gent consent of any person to his performing upon him an operation dangerous to life, but by misrepresentation ; and such a one could hardly satisfy a court of justice that he had under- taken the operation in good faith, for good faith must surely be construed here to mean a conscientious belief that he had skill to perform the operation and by it to benefit the party, while the supposition is that he was unskilled and ignorant." 22 A Kobiraj, who had previously cut out internal piles successfully, performed the same operation on a man who died 424 EXTENT OF JUSTIFICATION OF SUCH ACTS. [S. 216. from the loss of blood, and the Calcutta High Court held that it was impossible to say that the prisoner, in experimenting in the way he did, without any knowledge of the subject, was acting in good faith. The decision proceeded on the ground that the Kobiraj was uneducated in matters of surgery and had no regular education in those of medicine, and it was proved by expert medical evidence produced on behalf of the prosecution that the operation performed was one so imminently dangerous that educated surgeons scarcely ever attempted it, and treated the complaint of internal piles in a totally different way. 23 In Reg. v. Long?** Bayley, J., said : ' It matters not whether a man has received a medical education or not. The thing to look at is, whether, in reference to the remedy he has used, and the con- duct he has displayed, he has acted with a due degree of cau- tion, or, on the contrary, has acted with gross and improper rashness and want of caution." 216. S. 88 of the Indian Penal Code deals with such acts, when the consent to them is given by Extent of justification t he p erson . to w h om the harm is caused by consent in case of acts i , -\ , v -, T , , i for benefit of person con- or contemplated to be caused. It thus senting. provides that " nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm." It has been explained above in S. 206, that under section 88 of the Code consent may justify any act other than that intended to cause death, and that even acts known to be likely to cause death and actually causing death may be justified by the consent of the person dying. The section was, however, held not to exempt from culpability certain persons who performed emas- culation on a person at his request, but neither by a skilful hand nor in the least dangerous Avay, and therefore so as to cause death, but without knowing on account of their ignorance that the operation was likely to cause death. 25 And an examination of the section shows that except in regard to death, there will be no criminal liability whether the harm is caused by the act, or intended to be caused by it by 83 Sukaroo v. Empress, I. L. E., XLV | a * 40. & P. 423. Cal., 5(J6. 23 Qucon r. Baboolun, V W. R. Or., 7. 8.217.] EVKN BENEFICIAL ACTS NOT JOSTIFIED WITHOUT CONSENT. 425 the doer of the act, or known by the doer to be likely to be caused by it ; and whether the person to whom the harm is caused consent to suffer that harm or to take the risk of it. Nor is there any restriction in the section as to the competency or age of the person consenting, so that consent given by any person will justify the act consented to, if it fulfil the subjec- tive qualifications which have been explained in Chapter^VII. 217. There may be cases in which a person may be deemed justified in causing harm to another for Acts for a person's j lis benefit even a g a i nst his desire. A benefit not jastmed it , . . , not consented to by him. f"rgeon may thus sometimes consider it absolutely necessary for a person's recovery from a dangerous disease or for saving his life to operate upon him, even though that person's nervousness and ignorance may lead him to withhold or deny his consent to the operation. The English Criminal Code Bill of 1879 proposed to enact in its section 67, and the Canada Criminal Code has actually enacted in section 57, that " every one is protected from criminal responsibility for performing with reasonable care and skill any surgical operation upon any person for his benefit, provided that performing the operation was reasonable, having regard to the patient's state at the time, and to all the circumstances of the case." The protec- tion thus proposed to be given in England and actually given in Canada would not be dependent on the consent of the person upon whom the operation was performed, and, there- fore, would be absolute. In fact, Stephen, one of the framers of the Bill, in his Digest of Criminal Law, submits ib as the correct rule that " if a person is in such circumstances as to be incapable of giving consent to a surgical operation, or to the infliction of other bodily harm of a similar nature and for similar objects, it is not a crime to perform such operation or to inflict such bodily harm upon him without his consent or in spite of his resistance." The Indian Penal Code does not, however, recognize non- liability in such a case ; and the surgeon will, under tlie Code, be liable criminally for the effects of any such operation he may perform, however necessary or advantageous the operation may have appeared, and however well intentioned it may have been. Nor is this, as a general rule, to be deprecated. The contrary would be to give to a person's friends or physicians the right to force an operation which he declines. 54 426 GUARDIAN'S CONSENT DOW FAK EQUIVALENT TO ONE'S OWN [S. 218, "This, "as Bentliam observes, "would be to substitute certain evil for a danger almost imaginary. Distrust and terror would watch by the sickinan r s bed. If a physician, through humanity, goes beyond his right, and the experiment turns out unfavourably, he ought to be exposed to the rigour of the law, and his intention, at most, should only serve as an extenuation of his offence." 218. It may be otherwise when the person OTI whom the operation is performed is incapable of Guardians consent giving consent, in which case the absence generally deemed emu- -i i r i i valent to one's own cen- or even denial of lns COlHJent maybe sent. treated as null ; and the act treated as- if consent had been given by that person. This i the case when the incapacity to- give consent arises from a want of the subjective qualifications of an ade- quate consent, which have been laid down above in Chapter VIII. Thus when a person is under 12 years of age, or of unsound mind, and has a guardian or is in Lawful charge of some other person, the consent of the guardian OF the said other person may legally be treated as- the consent of the person liimself, " A hmatie may be in a state which makes it proper that he should be put into- a strait waist-coat. A child may meet with an accident which may render the amputation of a limb necessary. But to put a strait wai&t-eoat on a man without his consent is, under our definition, to commit an assault- To- amputate a limb is y by our definition, voluntarily to cause grievous hurt.'* ' It is, therefore, desirable u that the consent of the guardian of a sufferer who is an infant or who is of un- sound mind shall, to a great extent, have the effest whieh the consent of the sufferer himself would have, if the sufferer were of ripe age and sound mind." Section 89 accordingly provides- as a general rule that, nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an> offenee by reason of any harm whieh it may cause, orbe intend- ed by the doer to> cause, or be known by the doer to be likely to cause, to that person. 20 Note B annexed to the first draft of tl S.S. 219 & 220.] RESTRICTIONS ON GUARDIAN'S POWER. 427 219. The guardian's power of consent is not co-extensive, however, with a person's own. The Guardian's power of aut i aors o f t h e fi rst draft of the Indian consent is not co-exten- .- i n ^ " J.T ,i i-? ire with one's own. P ^" a J Code m J" st 'fy m g th difference said : "There is a considerable danger in allowing people to assume the office of judging for others in such case. Every man always intends in good faith his own bene- fit, and has a deeper interest in knowing what is for his own benefit than any body else can have. That he gives a free and intelligent consent to suffer pain or loss, creates a strong presumption that it is good for him on the whole to suffer that pain or loss. But we cannot safely confide to him the interest of his neighbours in the earne unreserved manner in which we confide to him his own, even when he sincerely intends to benefit his neighbours. Even parents have been known to deliver their children up to slavery in a foreign country, to inflict the most cruel mutilations on their male children, to sacrifice the chastity of their female children, and to do all this declaring, and parhaps with truth, that their object was something which they considered as advantageous to the children. We Iiave, therefore, not thought it sufficient to require that on such occasions the guardian should act in good faith for the benefit of the ward. It has been considered desirable to impose several additional restrictions which, we conceive, carry their defence with them." 220. These restrictions are that the guardian's consent " shall not extend to the doing of any- thing jjhieh the person doing it knows to be likelv to cause death, or to the / / voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous dis- ease or infirmity." M In the original draft there was another proviso to the effect, that the exception would not extend to rape, or to the gratification of unnatural lust, or to the attempt- ing to commit rape, or to gratify unnatural lust. Objections were made against the allusion to such acts, "as within a rule respecting acts done in good faith for the benefit of a child or lunatic." The Commissioners considered it proper to retain the clause with a view to guard the exception from abuse, as in the then state of moral feeling among large classes of the 7 Vide note B annexed to the first draft j 3 S. 89, L P. C. f the Qode. 1 VVHAT ACTS JUSTIFIED WITHOUT CONSENT. [S. 221 people of India, they did not regard that as a case out of all probability. The provision was finally omitted however. To help in the interpretation and application of the provisoes introduced into the section, a number of illustrations were given. Illustration (ti) was a case of intentionally causing death of one's daughter to prevent her from falling into the hands of Pindarees, which of course did not come within the exception, and was omitted evidently, as not necessary. The illustration (d} was a case of voluntary, but not intentional, causing of death; which fell within the exception, and even now finds a place in the Code. It provides that " A, in good faith, for his child's benefit without his child's consent, has his child cut for the stone by a surgeon knowing it to be likely that the operation will cause the child's death, but not intending to cause the child's death. A is within the excep- tion, inasmuch as his object was the cure of the child." What is chiefly noticeable in the provisoes to S. 89 is that they extend also to the attempt of all acts the doing of which is within their scops, and the fourth proviso expressly extends it to the abetment of all acts intentional or voluntary within the scope of the first three provisoes. This appears to have been necessitated by the changed phraseology of the rule of the exception, in which reference has been made to the consent to the act done, and not to the harm resulting from it, as in SS. 87 and 88 of the Code. This change in the phraseology is d:ie evidently to the circumstance that a person may consent to a harm to oneself, but cannot wHl be said to consent to a harm done to another, though he may well consent to an act done to another person and causing harm to him. Besides when the question is of consent to the acts causing harm to another person, the acts must be restricted to a much greater extent, and only those exempted from criminal liability which do not involve an intention carried out by oneself or by another, and in either case entirely or only to a certain extent. Bearing this in mind, the " grievous disease or infirmity, for the curing of which consent may be given to the voluntary causing of grievous hurt or even death," must be taken in a strict sense. 221 . There are cases in which acts causing harm are necessary for one's benefit, and not only the person What acts cnujing to whom the barm ig caufe( fi s incapable harm inched when done c . . ' ,. ivitbout cogent. of giving consent, but has no guardian or other person in lawful charge of him, S. 221.] WHAT ACTS JUSTIFIED WITHOUT CONSENT. 439 who may be appealed to for it. There can be no real consent in such cases, though it may be said that there is a presumed or even constructive consent, which, of course, is no consent at all. The authors of the first draft of the Indian Penal Code, speaking of such a case in their note 13, said: "For example, a person falls down in an apoplectic fit. Bleeding alone can save him, and he is unable to signify his consent to be bled. The sur- geon who bleeds him commits an act falling under the definition of an offence. The surgeon is not the patient's guardian, and has no authority from any such guardian; yet it is evident that the surgeon ought not to be punished. Again, a house is on fire. A person snatches up a child too young to understand the danger, and flings it from the house-top, with a faint hope that it may be caught in a blanket below, but with the know- ledge that it is highly probable that it will be dashed to pieces. Here, though the child may be killed by the fall, though the person who threw it down knew that it would very probably be killed, and though he was not the child's parent or guardian, he ought not to be punished. In these examples there is what may be called a temporary guardianship justified by the exigency of the case and by the humanity of the motive. This temporary guardianship bears a considerable analogy to that temporary magistracy with which the law invests every person who is present when a great crime is committed, or when the public peace is concerned." To acts done in the exercise of this temporary guardianship, the authors of the Code extended by S. 92 a protection very similar to that which they had given to the acts of regular guardians by S. 89. Bethune's draft proposed to enact briefly the following : u Nothing is an offence which is harm not meant to cause death, and which is done in good faith for the lawful benefit of the person harmed, in any emergency in which free consent cannot be sought or given." Such latitude was not considered advisable by the Committee of 1854, which adopted with some modification, the detailed and more stringent provisions proposed by the authors of the first draft, which were substantially adopted in the end by the Legislature, and enacted as a general rule in S. 92 of the Indian Penal Code. This section provides, that "nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is 430 RESTRICTIONS ON POWER OF CAUSING HARM WITHOUT CONSENT [8.222. possible to obtain consent in time for the thing to be done with benefit." 222. As in such cases there is no consent, the rule con- taining the exemption from criminality Restrictions on the i s still more circumscribed, and does not power of causing liarm extenc i even to t } ie voluntary causing of without consent. , c * -i ,1 i hurt except tor preventing death or hurt, the other restrictions being the same as in the case of consent by a guardian. D To further explain these restrictions, the authors of the original draft added the following four illustrations, all of which have been retained in the Code, as finally passed: (#) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending ZV death, but in good faith, for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence. (/>) 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 committed 110 offence. (c) 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, the child's benefit. A has committed no offence. (D) The provisoes containing these restrictions are First. That this exception shall not extend to the intentional causing of death, or the attempting to cause death ; Secondly. Ihat thin exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the pre- venting of death or grievous hurt, or the curing of any grievous disease or infirmity ; Thirdly. That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt ; Fourthly That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend. S. 223. ] ACT9 CONSTITUTING PUBLIC OFFENCES. 43 } 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 house-top, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child's benefit. Here, even if the child is killed by the fall, A has committed no offence. 223. Reference has been made above to cases in which consent to a criminal act by or on behalf Consent does not of a ^^^ deprives that act of ita justify acts constituting i v. TX i_ j public offences. criminal character. It was observed there that consent could have this opera- tion, only as regards the injury caused by that act to th^ person by whom or on whose behalf the consent was given, only so far as that act was an offence on account of the injury caused to that person. Acts which are offences quite apart from the injury to that person are not excused by the consent given to them by any individual. This is provided for directly by S. 1)1 of the Indian Penal Code, which enacts that the general exceptions made on the ground of consent, and enacted in 88. 87, 88, and 89 of the Code, do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to te likely to cause, to the person giving the consent, or on whose behalf the consent is given. Criminal acts directed against society, and not intend- ed to affect individuals as such did not require this special provision for their exemption from the effect of individual consent. Thus not only all the so-called offences against the State or its various departments, or its currency or revenues, but also all acts intended to produce public commotion or disturbance, to interfere with public convenience, or to corrupt public morals, are punishable quite regardless of the consent of any person, who may be incidentally affected by them. Con- sent of an individual to public nuisances, obscene publications and indecent exhibitions, has no effect on the criminal liability of the persons guilty of them. The law with regard to riots and affrays is the same, determined altogether by the interests of the public, and without the least regard to the injury caused to any persons by them in their mind, body or property. Whatever may be the effect of consent in a suit between party and party, it is not in the power of any man to give an effectual consent ACTS CONSTITUTING OFFENCES IRRESPECTIVE CF HARM CAUSED. [ g 224. to that which amounts to, or has a direct tendency to create, a breach of the peace, so as to bar a criminal prosecution. 29 224. Section 91 appears to refer chiefly to criminal acts which are offences against individuals, Consent does not jns- -, c ,, , , . ,. . , ' tify acts constituting regardless of the harm to the individual other offences, ii- directly injured by them. Thus acts pre- respective of harm caused judicially affecting society through an by them to person con- injury to individuals are also punishable as offences, notwithstanding consent given to them by any individual. As instances of such acts reference may be made to those causing miscarriage, and to duels and prize-fights. The first mentioned offence is given as an illustration in the Code, which provides that "causing mis- carriage (unless caused in good faith for the purpose of savin ^ the life of the woman) is -an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore it is not an offence 'by reason of such harm;' and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act." It is sometimes contended with regard to this offence, that the mother's consent to the act of causing miscarriage cannot purge the act of its criminal character, as the act is an offence on account of the injury done by the act to the child. It is said, on the other hand, that the child was not in esse, and so no injury could be done to it. The approved theory appears to be that it is an offence directly against society as affecting the increase of population. 30 It is an unlawful act, dangerous to life, and, as observed by Shaw, 0. J., in Coinmonwcatth v. Parker? 1 " the consent of the woman cannot take away the imputation of malice, any more than in cane of a duel, where in like manner there is consent of the parties." That prize-fights are illegal, and the parties thereto may be prosecuted for assault upon each other is quite evident and may be taken as settled. In Rex v. Billingham 3-1 two persons agreed to fight a pitched battle, and about 1,000 persons assembled to witness it. A scuffle ensued, which ended in a general tumult, and Burrough, J., said that all these fights were illegal and no consent could make them legal. In Rex v. Perkins Patteson, J., said : " There is no " The Queen r. Coney, 8 Q. B. D., 553. Per Hawkins, J. so State r. Cooper, 22 N. J. (L)., 62. si 9 Met., 263. 32 2 C. & P., 234. as 4 C. & P., 537. S. 224.] PKIZE-FIGIITS NOT JUSTIFIED EY CONSENT. 433 doubfc that prize-fights are altogether illegal ; indeed just as much so as that persons should go out to fight -with deadly weapons." Similarly in Queen v. Coney , 34 Hawkins, J., said: "Nothing can be clearer to my mind than that every fight in which the object and intent of each of the combatants is to subdue the other by violent blows, is, or lias a direct tendency to, a breach- of the peace, and it matters not, in my opinion, whether such fight be a hostile fight begun and con- tinued in anger, or a prize-fight for money or other advantage. In each case the object is the same, and in each case some amount of personal injury to one or both of the combatants is a probable consequence, and, although a prize-fight may not commence in anger, it is unquestionably calculated to rouse the angry feelings of both before its conclusion." In the same case, Lord Coleridge conceived, 35 "it to be established, beyond power of any argument however ingenious to raise a doubt, that as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace." The latitude given to manly sports and exercises, cal- culated to give bodily strength, skill, and activity, and to fit people for defence, public as well as personal, in time of need, when conducted merely as diversions among friends, " must not be extended to legalize prize-fightings, public boxing, matches, and the like, which are calculated to draw together a number of idle, disorderly people ; . . . . such meetings have a strong tendency in their nature to a breach of the peace ;" 36 for they " serve no useful purpose, tend to breaches of the peace, and are unlawful even when entered into by agreement, and without anger or mutual ill-will." 37 Stephen in his Digest of Criminal Law 3S lays down that " no one has a right to consent to the infliction of bodily harm upon himself in such a manner as to amount to a breach of the peace, or in a prize-fight or other exhibition calculated to collect together disorderly persons." a* VIII Q. B. I),, 553. 36 East. P. C., 370. s P. 507. 37 Com. v. Colberg, 119 Mass. ,351. 3 Art. 22y. 58 434 CONSENT AS GROUND OP MITIGATION. [S 225- CHAPTER XI. CONSENT AS A GKOUND OF MITIGATION. 225. Consent when not sufficient even as a ground for avoidance of criminal liability, or for Consent a ground for .^ c ,- f , . J ,, mitigation of liability. justification of a criminal act, is generally deemed to be a cause for mitigation, or, as French jurists would say, an excuse. Thus Sutherland, in his treatise on Damages 1 says : *' The previous consent of the plaintiff to the act which he complains of, though not given in a form to bar him or support a plea of justification, may yet be proved in mitigation of damages. Thus in trespass for an alleged injury to the plaintiff's wall by inserting joists in it, evidence that the wall was so used by the defendant in the erection of an adjoining building under an express parol agreement with tho plaintiff is admissible under the general issue in mitigation." In Adams v. Wajgonzr, 2 i t was said that consent might be shown in mitigation of damages for an assault, even when it would not bar an action for it. In Gosha v. State, 3 the court observed that though the consent of a minor girl to sexual iutei course with her was not justification, yet it should so mitigate the crime as to make the punishment lighter. Breithaupt in his work on Volenti non jit injuria* explains very clearly the ground of this mitigating operation of consent in criminal law. He says that every offence contains two essential factors (momente); first, an objective one consisting in this, that the acting person violates the positive law, i. e., the will of the State or the interests of the public welfare ; and secondly, a subjective one through which the acting person illegally opposes the will of the injured (person); and therefore in the cases in which the latter has given consent, the subjec- tive factor is removed, and the doer offends only against the jus publicum, in as much as the existence of the offence is not altogether prevented by consent. Nun ware es dock entschieden eine grosse UngsrechtigJceit, ivenn man Denjenigen, der durch seine llandlungen nur Missachtung gegen einen Wi/len, namlich den des Staatss, an den Tag legt, mit derselben Strafe bedrohte, icie Denjenigsn, der nodi die Subjehtivitat des Verlctzten speziell itidem er ziujleich auch geyen den Willen desselben T. ?18. I a 56 Ga., 30. 33 Iud.,531. ' P. 35. S. 226. j CONSENT AS MITIGATION OF HOMICIDE. 435 handdt. Es ist also lei dem mit Einwilligung des Verletzten Hand-tin den die Widerrechtlichkeit eine abgescJiwachte.(a) He comes to the conclusion that dass bei der Verl&tzunq mil IL'in- wiliigung eimrseits der Verstoss (jcgen das positive Recht geriigt werden muss, und dass andererseits nicht die voile Strafe verhdngt werden darf, welche au.f da* ohne Einwilligung des Verhtzten beijamjene Delikt gisetzt ist. (b} 226. It has been explained in the previous chapter that con- sent to another person causing the death of Consent is ground t , Qn Conselltin? does riot affeot the of mitigation in case ot . f , , . , homicide. criminal character or the act causing death; and that the act remains penal notwith- standing die consent. This has been determined in deference to the importance of the state and to abstract conceptions of morali- ty, but. is quite as opposed to popular ideas, as to the notion of the individual's own rights. As a compromise between the conflict- ing rights of society and of the individual, it generally came to be recognized that the causing of death in such a case, even if otherwise murder would be a mitigated form of it, con- O sent tnus having the effect of reducing, it not removing, the criminality ol the act. There Appears to be no provision in any European Code expressly making consent a ground for the mitigation of the offence, but at the same time there appears to be no doubt that consent is everywhere recognized as a ground for the mitigation of its punishment. In Franco, R. Garraud admits 5 that the consent of the person killed certainly modifies the criminality of the murderer to a material extent. He says, however, that the circumstances bearing on consent, and the motives of the person acting on it, are so varied, that it will not be convenient, to make consent an excuse, a mitigation of an offence as distinct from a mitigation of punishment ; and that there will be more inconveniences than advantages in a disposition which would by law reduce the punishment of (n) It would certainly be a great injustice if we threatened him with the same punishment, who had by his acts shown a disregard merely for the wish of the State, as him who had especially operated against the subjectivity of the injured person, in as much as lie had nt the same time acted also against this will of the injured one. (//) That on the one hand, in the case of an injury with consent the violation of positive law must be punished, and that, on the other hand, there may not be awarded the fall paiiihrmnt which is laid down for the offence if committed without consent. IV Gar. Dr. Pen., 3l'J. 436 CONSENT AS MITIGATION OF HOMICIDE. [S. 226- assassination or murder, because the crime was committed with tbe consent or on the demand of the victim. He says : Comment ce consent ement a-t-'d ete obtenu ? Uidee premiere du suicide et la volonte de I'accottplir viennent-elles de la victime ? Quel a ete le mobile de la personne trap complaisant e qui a execute V homi- cide? A-t-tlle voulu obeir a un faux sentiment d 1 amitie ? Au contraire, n'a-t-elle eu d'autre butque de satisfaire ># haine ou sa jalousie contre la victime, ou me me fa cupidite ? On voit c.ombien de circonstances diverses peuvent modifier la situation. La loi piurrait-elh les prevoir ? Qufarriverait-ilsi elle en omettait quel- ques-unes? et n'est-il pas preferable de laisssr au Juge, mieux place que le legislator pour apprecier toutes ces eirconstancts, le soin de moderer la peine, s*il convient de le faire ? (a) In some Codes also, consent is thus expressly treated as a mi- tigation of punishment in case of homicide by consent. The Spanish and the Danish 7 Penal Codes provide a light punishment for homicide by consent. The Codes Penal of Holland 8 and Hungary provide a special punishment for taking a person's life at his express and earnest desire. The German Penal Code, in 216, provides a greatly reduced maximum of punishment for killing a person when one should have been determined to it by das ausdrucJc/iche und ernstUche Verl am/en (the express and earnest request) of the person, killed. But Verlangen is, as observed by Oppenhoff, more like instigation than mere consent (Einwittigung), which latter is not sufficient to bring the killing within 216. Verlangen, as pointed out by Dr. Riidorff in his Commentary on the German Penal Code, cannot be identified with Zustinimung or Einicilliguni:/^ as for VerJangen it is necessary that the initiative should come from the person killed, while for the latter, i. e., Zustimmunf a band <>f iijarau- 9. 227.] CONSENT AS MITIGATION OP HOMICIDE. 439 ders, would, except in Christian societies, scarcely be thought culpable, and even in Christain societies would not be regarded by the public, and ought not to be treated by the law, as assas- sins. Again, this crime is by no means productive of so much evil to the community as murder. One evil ingredient of the utmost importance is altogether wanting to the olfence of voluntary culpable homicide by consent. It does not produce general insecurity. It do^s not spread terror through society. When we punish murder with such signal severity, we have two ends in view ; one end is, that people may not be murdered ; another end is, that people may not live in constant dread of being murdered. This second end is perhaps the more im- portant of the two. For if assassination were left unpunished, the number of persons assassinated would probably bear a very small proportion to the whole population ; but the life of every human being would be passed in constant anxiety and alarm. This property of the offence of murder is not found in the offence of voluntary culpable homicide by consent. Every man who has not given his consent to be put to death is perfectly certain that this latter offence cannot be committed on him at present, and that it will never be committed unless he shall first be convinced that it is his interest to consent to it. We know that two or three midnight assassinations are sufficient to keep a city of a million of inhabitants in a state of consternation for several weeks, and to cause every private family to lay in arms and watchmen's rattles. No number of suicides, or of homicides committed with the unextorted consent of the person killed, could possibly produce such alarm among the survi- Objections were raised against this provision in regard to the effect of consent. It was broadly observed, that it was no allevia- tion of homicide that the murderer had the person's consent to kill him. 12 It was said that apart from "all religious considerations of a future state, and merely adverting to man's strong natural love of life, even in the most desperate circumstances, the mere fact of a person consenting to be killed would indicate a morbid state of mind sufficient to raise a doubt of his sanity;" 13 That the principle of the sanctity of life should not be departed from, and that the " prerogative of mercy would much better be allowed to apply when necessary to such cases, than a rule be laid 12 Indian Law Commissioner's first I I3 Indian Law Commissioner's first Report, para. 28'J. lleport, para. 284. 440 AGE OF CONSENT FOR HOMICIDE. [S. 228. down that a man has to some extent a right to authorize its destruction." S. 316 of Bethune's draft of the Code thus provided, that . law." S. 232.] HOMICIDE IN DUEL HOW FAR NOT MURDER. 445 232. This appears to be the correct view also,as iu England and the United States, it is the treatment Unsatisfactory effects o f homicide by duel as murder, and the or treating' homicide in a , J . . . , duel as murder. consequent extreme severity or the punish- ment for it, which has stood in the way of the repression of that offence, by enlisting the sympathy of the public and juries in favor of duellists. Thus Alison, in his Principles of the Criminal Law of Scotland, 18 observes, that " such has been the natural and human sympathy both of courts and juries, with the alternative to which the best men are often reduced, of fighting a duel, or losing their place in society, that there is hardly an instance, for a long period, on our records, of a capital sentence being pronounced on such a charge, if there was nothing unusually savage or dishonourable in the conduct of the accused." And after mentioning by name a variety of cases in which fatal duels bad been fought, and in which the judges had laid down the law, that death by duel- ling was no other than murder, he says, that nevertheless "successive verdicts of not guilty were delivered by juries." In Eden's Principles of Criminal Law, it is stated: " I have not found any case of an actual execution in England in conse- quence of a duel fairly fought." This is due chiefly to the treatment of homicide in a duel as murder. However imperative a law may be, it loses its force when it includes in the same prohibition, by the same name, and under the same penalty, acts different in their motives, circumstances and effects. As observed by Livingston, in the introductory report accompanying his draft of the Criminal Code of Louisiana we may, in our statutes, give the name of murder to death occasioned by a duel; but the world will not adopt the appellation ; and a combat, sanctioned by the irresistible command of public opinion, and marked by no circumstances of peculiar malignity, will never be considered, prosecuted or punished, as an assassination. (A) (A) Livingston observes in his report as to the punishment of duelling : " That practice, in modern times, seems to have proved howineffioient are all laws when Opposed to public opinion, and to what degree the fear of shame will prevail over that of punish- ment. Severe penalties have been denounced against it in vain ; and it ia the more difficult to be eradicate^, because it prevails most where courage, a fear of disgrace, and a sense of persona! dignity are most perfect." And again, " the same falae sentiment of honour which leads to a breach of the laws iu committing this offence, renders its punishment more difficult. Witnesses avail themselves of the principle, that they cannot be compelled to justify anything that may inculpate themselves ; and, therefore, neither seconds, nor surgeons, nor any others, who were voluntarily present, can be induced 18 P. 54. 446 HOMICIDE IN DUEL HOW FAR NOT MURDER. [S. 233. 233. Attempts have sometimes been made even in England to reduce the offence of such homicide Attempts in English from murder to manslaughter. The law against the treat- drafts of tfae Cod Te \^\na to the ] aw of ment of homicide ma, ... ', . , p . f . duel as murder. homicide, presented witn the fourth and the seventh Reports of Her Majesty's Commissioners in the years 1839 and 1843, provided that, "if two persons deliberately agree to fight with deadly weapons, and one be killed, the offence of the other is not extenuated.'* With a change in the view as to the effect of consent on the culpability of homicide, the draft presented with the second report of the English Commissioners presented in 1845, provided expressly that "homicide is extenuated where, if two persons deliberately agree to fight, a contest ensues, and one of them is killed: pro- vided that if such contest be with deadly weapons, the party kill- ing shall incur the penalties of the second class;" and also that "homicide is not extenuated in the case of any such contest as in the last preceding article is mentioned where the death of the person killed is caused in consequence of any unfair advantage taken, or any unfair means used, by the party killing." 18 The majority of the Commissioners in their notes on these provisions said: 20 " An evil ingredient in the crime of murder of great importance is wanting to the offence of duelling: death by duel- ling does not, like murder, spread alarm through all ranks of society, from the highest to the lowest. The grounds on which the extreme measure of capital punishment, in cases of murder, seems justifiable, are, first, to prevent the severest of personal injuries, and secondly, to prevent people from living in constant dread of being murdered. It is obvious that, in the case of duels, the danger is confined only to the higher class of society ; and what is of more consequence, no one need be in dread of dying by such means, unless he chooses to enter into a voluntary compact to violate the law. As the punishment for murder is not grounded on the Jewish law, nor on our moral or religious horror at the act, but on its prejudice to society, and chiefly on the inse- curity and alarm it occasions, it appears to us that there is not an adequate cause to justify the taking away of ' life, where death occurs in the instance of two persons voluntarily agree- to testify ; so that facts notorious to the world, published in every newspaper, which must be known and understood in order to exonerate the parties from the foul crime of assassination, and which, therefore, they cannot wish to keep seoret, can rarely be proved before a court of justice." B Vide SS. 16 & 17. | 20 Second Report, 30. S. 233.] HOMICIDE IN DUEL HOW FAR NOT MURDER. 44,7 ing, according to certain stipulated or implied rules, to give each other an opportunity of killing his antagonist. It seems to us that the present law is shown to be ineffectual in repressing the practice, and that its effect is to afford immunity to duellists." The Commissioners further said : " The case of treacherously killing in a duel, where the party killed cannot be deemed concurrent in producing his own death, unless indirectly and remotely, we propose to leave under the present provisions of the law. By the present law, cases of homicide which would otherwise have been manslaughter only, amount, where undue advantage is taken or unfair means are used, to murder. As for instance, where parties fight upon a sudden quarrel, and one of them is killed, this is murder, if the party killing sought or took any undue advantage, otherwise it is man- slaughter only (Foster, Disc. II., c. 5, S. 3). In the same section also, Mr. Justice Foster, speaking of a fight upon a sudden quarrel, where one of the combatants is killed, says : 1 This is holden to be manslaughter, for it was a sudden affray and they fought upon equal terms.' In Whiteley's case (1 Lew., 173), where a party was killed in a sudden affray, Mr. Justice Bayley told the jury, ' If a party enters a contest dangerously armed, and 6ghts under an unfair advantage, though mutual blows pass, it is not manslaughter, but mur- der.' And although even this case may not appear to be attended with alarming circumstances to the same extent as other murders, yet it is apprehended that the punishment of death in such cases would not be followed by the stifling of prosecutions, or the acquittals of juries by any means to the like extent, as is the case, according to the experience of the cri- minal annals of this country, and (as appears from the opinions we have cited) according to the experience of the Scotch and (B) The Commissioners continued : " The reluctance of witnesses and juries to take any part in the capital conviction of a person who has been engaged in a fair duel, especially if he may have received grievous provocation, or been the party challenged, must have been manifest to persons who have been present at trials of this description. And there have not been wanting examples of persons of high rank and character tending to diminish the public odium of the ofience of duelling. We are, for these reasons, of opinion that, by abolishing the capital punishment in oases of duelling, not only will a just objection be removed from the law of punishing the oifence with death, without due discrimination between that offence and other cases of murder, but a great stigma in our criminal jurisprudence will be taken away, that of leaving a very serious injury to society unrepressed, by reason of affixing a punishment for it which it is found generally impracticable to put into execution.." 448 HOMICIDE IN DUEL HOW FAR NOT MURDER. [g. 234. American tribunals, with the punishing with death duellists under all circumstances." 234. There is a strong concensus of opinion against treat- ing a killing in a duel as murder, and in General consensus fayour of fche V[QW taken b the R j against treating homicide ^ . . a j_t_ T j n in a duel as murder. Commissioners and the Indian (Jommis- sioners. Thus Livingston in an intro- ductory report on his Draft of the Louisiana Criminal Code' said : " If you wish to have it punished at all, it must be by its own name, and a proportionate punishment, nor must that be an infamous one. Put what is called a fair duellist on a footing (C) Thomas Starkie dissented from the majority of the Commissioners, and in his dissenting Note said : " If the objection already urged against the plea of extenuation where a party is killed by his own consent be just, it is decisive also on the present question. A dnel is but a compact by which each party gives leave to the other to kill if he can. Looking to the motives by which duellists and the juries who try them are usually actuated, and the probable moral result of the proposed alteration, its adoption appears to me to be inexpedient. Experience leads to the conclusion that the practice is not controlable by mere penal laws. A party in a duel is usually influenced by one or other of two motives : he acts in a spirit of resentment arising from unredressed injury, or in deference to the law of public opinion. Where the law gives no redress for a severe injury to the feelings, as, for instance, a sister's dishonour by deliberate seduction, the brother, to satisfy his own revenge, or it may be in expectation of effacing the stigma on his family, has recourse to arms, and should he kill the seducer, although the criminal law may denounce him as a murderer, the law of public opinion views the offence very differently. Juries, in such cases, are influenced by considerations which the law cannot possibly estimate or recognize, and it is impossible that they should not be sensible that, however deplorable the appeal to arms may be, the practice is not without some degree of salutary effect in restraining men from the infliction of severe wrongs and intolerable insults, against which the law can afford no adequate protection. Henoe arises a wide and necessary difference between the penal law and the laws of honour and of public opinion a difference which can never be wholly reconciled, although some approach to it may be made by extending the sphere of legal protection against injuries to the feelings, and which difference, when it prevails to a great extent, greatly weakens the effect of the penal law. The impossibility of preventing the practice of duelling by subjecting offenders to even the severest measure of punishment does not, however, by any means warrant any legislative extenuation, except it can be founded on circumstances which the law can recognise, as in the case of grave provocation; the law cannot be moulded for this purpose to agree with the laws of honour or of public opinion, and where this cannot be done, the case must stand as though no ground for extenuation existed. It is urged as an argument for extenuation that the punishmenr, for a very serious injury to society (by killing a man in a duel) is now impracticable, and it is assumed that the offence will be repressed by making the proposed alteration. I cannot accede to this opinion. I believe that duels arise from motives (to which I hare already alluded) which are beyond the control of mere penal laws ; and it seems to me to be probable that where juries would, under the influence of considerations such as have been suggested, evade if possible the conviction of a party for a duel fairly fought where the offence was capital, they would give the same verdict although the offence were punishable only with transportation. To inflict a slighter punishment by fine, or even a term of imprisonment, would be to trifle with so grave a crime. Whilst, as it seems to me, little good could be expected from the proposed alteration, it might, I think, be productive of much htrm in a moral point of view. It would be understood to manifest an alteration in the opinion of the Legislature, as to the heiuousness of the crime of homicide, and of course, tend to diminish the efficacy of the law against it. I am induced briefly to express my opinion on the subject of the particular alteration of the general law concerning homicide which has been proposed, but with considerable reluctance, not, indeed, because I doubt .as to the inexpediency of the change, but becnuse it is a question of moral and public policy which is scarcely a fit subject for discussion in a mere note to a proposed article." S. 234.] HOMICIDE IS DUEL HOW FAR NOT MURDER. 449 with a thief or a murderer, and you assure his impunity. . , . Let the severe punishment, then, be reserved for treachery and ferocity; inflict a mild penalty on duels fairly conducted, punish the insults which lead to them, and you will insure the execution of the law. 7 ' Acting on this view, he provided in S. 555 a maximum punishment of only four years for a person killing one's adversary in a duel, except when death should be caused by treachery, in which case that person was to be deemed guilty of murder by assassination. The Codes oi most of the European countries also provide only a light punishment for ordinary homicide in a duel. Thus the Belgic Penal Code provides that homicide in a duel shall be punished with imprisonment from one to five years. 81 The Spanish Penal Code provides for its punishment only with prison ?najeure. 22 206 of the German Penal Code provides that any one who kills his opponent in a duel shall be punished by confinement in a fortress for not less than two years, and if the duel is of such a nature that it must bring about the death of one of the two, hy confinement in a fortress for not less than three years. This is qualified, however, by 207, which provides that if the homicide has been brought about by means of a deliberate transgression of the agreed or traditional rules of duelling, the transgressor is to be punished according to the general regulations relating to the offence of homicide. The Italian Penal Code similarly provides in S. 239 the punishment of detention for a period which may not be less than six months and not more than five years for a person who in a duel kills his adversary, or makes a wound that causes the adversary's death ; S. 243 providing that there would be no mitigation of punishment for homicide or hurt on account of their having been caused in a duel : 1. if the conditions O of the combat have not been settled beforehand by the seconds or witnesses ; 2. if the combat did not take place with equal arms, or with any arms other than swords, sabres, or pistols of equal charge, or with arms of precision, or with several cuts ; 3. if in the choice of arms or in the course of the combat there was fraud or violation of the settled conditions ; or 4. if it should have been expressly agreed that the duel would cease only with the death of one of the combatants, or if that condition resulted from the nature of the duel, 81 Art. 430. 1 22 Art. 350. 57 450 HOMICIDE IN A FIGHT BETWEEN ARMED FACTIONS. [S. 236, from the distance between the duellists, or from other settled conditions. 235. The Exception 5 of S. 300 of the Indian Penal Code, Homicide in a preme- though applicable to duels, does not ditated fight between apply to premeditated faction bghts be- armed factions is nmr- tween armed persons known to each other ^ en to be armed. The contrary WHS held by a Division Bench of Calcutta High Court in The Queen v. Kulder Mather?* decided on the 13th November 1877, in \vhich White, J., in his decision said : " A man >vho, by concert with his adversary, goes out armed with a deadly weapon to fight that adversary who is also armed with a deadly weapon, must be aware that he runs the risk of losing his life; and as he voluntarily puts himself in that position, he must be t-iken to consent to incur the risk. If this reasoning is correct as regards a pair of combatants fighting by premeditation, it equally applies to the members of two riots or assemblies who agree to fight together, and of whom some on each side are, to the knowledge of all the members, armed with deadly weapons." In Empress v. Rohimuddiu?* Ainslie and Broughton, J. J., held, however, that the exception did not apply to such fights between armed assemblies, chiefly on the ground that if it, applied to them, the exception 4 of the same section 300 would be superfluous. Ainslie, J., said : *' If culpable homicide in a premeditated fight with deadly weapons is not murder, a fortiori unpremeditated culpable homicide in a sudden fight in the heat of passion upon a sudden quarrel would not be mur- der. It seems to me that the 4th exception clearly indicates that culpable homicide in a fight is murder unless the fight is unpremeditated, and is such as is therein described, sudden in the heat of passion and on a sudden quarrel - f a fight is not per se a palliating circumstance, only an unpremeditated fight can be such. Where persons engage in a fight under circum- stances which warrant the inference that culpable homicide is premeditated, they are responsible for the consequences to their full extent." The question came next before White and Field, J. J., who dissented from that decision. Referring to the chief ground 23 Unreported. I 2 * I. L. 11.. V. Cnl., 31. S. 233.] HOMICIDE IN A FIGHT BETWEEN ARMED FACTIONS. 45 J oftliat decision, White, J., said, 25 "If, as I think, according to. the common and natural meaning of the words, an armed man, who deliberately fights with another man whom lie knows also to he armed, consents thereby to take the risk of death* why is the adversary who kills him to be excluded from the benefit of the 5th exception, because hy another exception the case of a man who kills his adversary in the course of sudden fight is specially provided for. The circumstances under which a man slays his opponent in sudden fight are different from those where he slays him in premeditated fight, and if the Legislature intended that the offence of both should be only culpable homicide, the intention would naturally be shown by the enactment of two distinct exceptions. Again, sudden fight is a distinction recognised by the Eno-lish law of homicide, and * the framers of the Code may easily be supposed to have for that occasion alone made sudden fight the subject of a distinct exception, without imputing to them the intention thereby implied, by excluding from the 5th exception a case of premeditated fight, if it actually falls within the meaning f the exception. The sound construction to my mind is, that the 5th exception extends to all cases of death occasioned by, or resulting from, premeditated acts, where the party killed takes the risk of the death with his own consent; and that the 4th exception is an independent exception, applying lo all cases of death occurring in the course of sudden and unpremeditated fight, and does not in any way bind the natural operation of the 5th exception." Field J., concurred with the judgment of White, J., and observing that both parties were armed and prepared to fight, said : " I think it is reasonable to say that, in entering upon that conflict, each party had for its object to fight for victory, and in doing so, knowingly and deliberately took upon itself the risks of the encounter ; to this state of facts I agree that the 5th exception is applicable .... When a man, being one of an armed band, and being himself armed with a deadly weapon, takes part in a fight, and uses that deadly weapon against his opponents, I think it is reasonable to say that he was, within the 4th clause of S. 300, committing an act which he knew to be so imminently dangerous, that it must, in all probability, cause death or such bodily injury as is likely to cause death. . . . When he and his party are opposed by a numher of persons similarly armed, and using their arms in a similar way, I think it is reasonable to say * 5 Samsliere Khau r. The Empress, I. L. R.. VI Cul., 150. 452 HOMICIDE IN A FIGHT BETWEEN ARMED FACTIONS, T S. 23*. that such pem>n, within the meaning of exception 5, takes the risk of death with his own consent." The most important case on the subject is the Full Bench decision in Queen Empress v. NayamudJiri in which Pigot, J., delivered the leading decision, and Sir Comer Petheram, C. J., and Macpherson, J., concurred with it. In that decision, he observed that before the exception 5 could apply, there must appear some degree of particularity at least both as to the act consented to or authorized, and the person or persons authorized, and said : " I cannot read it as referring to anything short of suffering the infliction of death, or running the risk of having death inflicted, under some definite circumstances not merely of time, but of mode of inflicting it, specifically consented to, as for^ instance in the case of Suttee, or of duelling, which were, no doubt, chiefly in the minds of the framers of the Code. Nor can I understand that it contemplates a consent to the acts of persons not known or ascertained at the time of the consent being given." With reference to the analogy of a fight between two armed individuals on which White, J., relied in the Queen v. Kukier Mather and in Samshere Khan v. Em- press, Pigot, J., pointed out, that '* in such a case the cirura- stances do show a distinct act of the mind of each combatant with respect to the other and in concert with him of willing- ness to encounter and suffer such known and anticipated acts of violence from that other as he cannot defend himself from. But I think there is a distinction between such a case and that referred to in the following passage, at pa^e 358 of the repoit of Samshere Khan v. Empress, of the members of two riotous assemblies who * agree to fight together,' and of whom some on each side are, to the knowledge of all the members, armed with deadly weapons. 1 do not think that from such a mere agree- ment to fight, such a consent as is contemplated by the section can be imputed to each member of each mob, to suffer death or take the risk of death at the hands of any one of the armed members of the other mob, by means of whichever of such deadly weapons, used in whatever way that person may please, and be able, to inflict it." In the particular circumstances of the case, O'Kinealy and Ghose, J.J., also agreed in thinking that the excep- tion did not. apply, but they considered that the question of its applicability was not one of law, as to which any ae I. L, K., XVIII Cal., 481. S. 235.] HOMICIDE IN A FIGHT BETWEEN ARMED FACTIONS. 453 general rule could be laid down, but one of fact to be decided with r^ferenc? to the circumstances of each case. Ghose, J., relied upon the analogy, referred to by White, J., in Sam- shere Khan v. Empress? 1 of a fight between two armed persons, itnd said : " In such cases, I think, it can hardly be questioned that the exception would apply. It' so, I do not see why, when the fight is between a person and two or more persons, or between two or more persons on either side, it cannot apply. There is nothing in the exception itself to indicate such a distinction. Take this case : Two men, on each side, are determined and agree to fight each other until some one of them is killed or wounded. They use different weapons ; the two on one side use a gun and a club, respectively, and the other side a sword and spear. The fight is begun, and nothing is shown indicating that any one of the combatants resiled from that determination and agreement; and in this fight one of them is killed. Here there was no consent given by the deceased to any particular person killing or wounding him, or as to the particular weapon that might be used for the purpose. Instances of this kind might be multiplied to show that a band of persons varying in number, and armed with different kinds of weapons, may fight another band of persons similarly situate, both bands agreeing to fight each other until one is killed. In these cases, the person killing, the person to be killed, the mode and the instrument by which death might be inflicted, would be uncertain ; and yet, each one of the combatants might expressly consent to suffer death, or take the risk of death. Can it be said that in these cases the exception does not apply ? In a case where there is no express consent, the difficulty of bringing the offence within the exception is indeed great ; but there may be facts and circumstances proved, which necessarily lead to an inference of consent, and from which the jury may find that the deceased took the risk of death with his own consent." O'Kinealy, J., also said : " Consent under the Code is not valid if obtained by either misrepresentation or concealment, and implies not only a knowledge of the risk but a judgment in regard to it, a deliberate free act of the mind. In other words, before this section can be applied, it must be found that the person killed, with a full knowledge of the facts, determined to suffer death or take the risk of death, and this determination " I. L. K., VI CaJ., 151. 454 HOMICIDE IN' A FIGHT BETWEEN ARMED FACTIONS. [S 235- continued up to, and existed at, the moment of his death. It appears to me difficult to assert that when two parties armed with lathies and spears go out to fight, the members of each party consent to suffer death ; nor can it, I think, be predicated, as a general rule, that they consent to take the risk of death. . . . If two men went out armed with rifles and fired at each other from a distance of 10 yards, and one of them was shot, then looking at the nature of the weapons and the short dis- tance which separated them, I think, looking at the illustration to section 87, that a Jury would be entitled to hold that they took the risk of suffering death. But as the existence of the consent at the moment the deceased received the fatal shot would be necessary in order that the accused should obtain the benefit of the exception, he could not succeed if the evidence pointed the other way. Thus, if the deceased declined to con- tinue the fight, or ran away, or showed in any other open manner a desire to avoid his previous consent, the accused could not successfully appeal to this exception. On the other hand, if they were armed only with ordinary walking sticks, I think it would be extremely difficult for a Jury to hold that the parties had fully before them the idea that they were running any risk of death, or ever consented to suffer death. Between, these two extremes there are numerous cases different in degre^, in which it would be extremely difficult to state what was the mental attitude of the person whose deatli was caused when he was killed. If, as I have said before, the parties were armed with guns and were placed near each other, a Jury might well find that they had undertaken the risk of death. If, on the other hand, there was only one or two guns amongst a great num- ber of people, there would be much less room for the conclu- sion that the deceased considered there was any risk of death or consented to take it. So far as I can see, the nature of the weapons with which the parties were armed in this case is onlv one out of many facts from which the consent of the deceased should be inferred : and I myself would not come to the con- clusion that any individual of either of the two parties consent- ed to take the risk of death, when the evidence in support of that conclusion is simply that some of the men on both sides were armed with lathies and spears." Ghose and O'Kinealy, with "White, J., in the case of Sam- slier e khan do not appear to make a sufficient distinction I. L. R., VI Cal., 151. 8. 235.] HOMICIDE IN A FIGHT BETWEEN ARMED FACTIONS. 455 Ix-tween a knowledge of the likelihood of death, and taking the risk of death with his consent. Mr. Mayne, in the last edition of his Commentaries on the Indian Penal Code, 29 observed that it seemed to bim certain that the exception was " directly intended to abrogate the rule of English law that a combatant in a fair duel who kills his opponent is guilty of murder. If so, the rule must equally apply, however numerous the com- batants may be, provided they have voluntarily sought the contest, with a knowledge that its result may probably be fatal." This observation has not been repeated in his work on Indian Criminal Law, which supersedes the Commentaries. There also, he refers, however, to the confusion in the full bench judgment from a want of distinction between consenting to death and taking the risk of death, and says : J4< " In a formal duel each combatant takes the risk of a contest, strictly limited by rules as to weapons, duration of the combat, &c. But in the case of two bodies of armed men there is no consent to death, and no authority to inflict it. Each takes the chance of whatever may happen. The only question will be, What does he take the chance of ? If a party go out with their lists, or with ordinary sticks, they do not expect to take the risk of being attacked with guns or spears. But if a party armed with guns, spears, and lathies goes out to meet another party similarly armed, each member of the party takes the risk of the general result of the fight. It is impossible to dis- tinguish between one member and another, and to require proof that a man who was only armed with a lathi took the risk of being speared or shot. It is necessary to show that the deceased was a member of a party which went out to seek a contest which might end fatally, and expecting to meet a party similarly prepared. It is also necessary to show that he shared in the common purpose of his party. It is difficult to see what further evidence could be given. It could hardly be alleged on behalf of such an individual who met with his death, that he took the risk of killing, but did not take the risk of being; killed.' o Mr. Collett also took 31 the view that the exception contained in clause 5 applied where death w r as caused in a fair fight with deadly weapons, and no undue advantage was taken, and that thus death caused in a fair fight by several on each side, was not as p. 288. I 30 P. 615. 1 81 Comm. P. C., 244. HOMICIDE IN A FIGHT BETWEEN ARMED FACTIONS. [S. 235. murder, but only culpable homicide not amounting to murder. He had not the advantage, however, of considering the grounds urged by the majority of the Full Bench of the Calcutta High Court, It certainly appears that in the case of a faction fight, the likelihood of the death of any particular individual is too remote for the cognizance of law. There is a certain risk of death in almost every act, even in the act of an even- ing ride, or drive, or of going under a roof which may fall, or of eating one's meal which may contain poison. But no one thinks that a person by doing any of these acts takes the risk of death. The danger of death in a faction fight is more than in these acts, but generally not sufficient to justify the fight being deemed a consent to take the risk of death. Objection has also been taken to the particularity insisted upon by Pigot, J. It has been asked : " Suppose a person consents with a number of persons that any one of them may kill him or employ any person to kill him, will not this case fall within the exception ? " ^ There is no doubt, however, that as a general rule, for a valid consent, the particularity of the act consented to as well as of the person doing it is necessary. In regard to the former, Breithaupt in his work on Volenti non fit injuria says: Die Einicilligung muss sich auf eine konkret,e gaiiz bestimmt bezeiclmete verlrtzendt Handlung leziehen, welche der Thiiter vorzunehmen beabslchtiyt und der sich der Einwttligende untenrerfen wollte. So u'tirde also nock keine Bercchtigum/ znr Weijnahme eines belicbigen Geyenstandes vor/ianden sein, wenn JemnnH ganz allgemein darin yewilligt kat : sick bestehlen zu lassen. (a) As to the person, Breithaupt, after observing that as a general rule he who consents to an injury not only has a certain person in view, but that he also especially gives him his consent, says that cases may be imagined in which an exception may be made, as for instance when consent is not given to an individually definite subject but to a smaller or larger circle, and every one belonging to that circle can consider himself justified in causing the injury in question. He adds : 34 Unter (er intends to undertake and to which the consenting person wishes to i*ubject himself. There would therefore be uo right to the removal of any article at one's option, if anybody had quite generally consented to allow himself to be robbed. 32 I Mad. L. J., 691. I 33 p. 26. I 3 * P. 33. S. 236.] CONSENT AS GROUND FOR MITIGATION OP PUNISHMENT. 457 Umstdnden ist sogar noch nicht einmal eln certus circulus nothwendig. Man denke an einen zum Tode verwundeten Krie- gir, ic etcher von den grdsslichsien Schmerzsn gepeiniqt, ganz allgemein darum bittet, dass sick dock Jemand finden mochte, icelcher ihm dsn Todesstoss givbt. In diesem Fall ist Jeder, der die dringende Bitte ho/t, ob Freund ob Feind, berechtigt, die Verletzung ausziifuhren. Ist dagegen die Einwilligung einer bcstimmten Person erthiilt, so ist ouch nur diese allein bp.rechtigt die Handlung vorzunehmen, da derjmigc, icelcher in seine Verlet- zunq icilligt, nuturgemiiss freie Selbstbestimmung besilglich des Miitels oder Werkzeuyes haben muss, dessen er sick dazu bedie- nen will, urn sich die Verletzung zufiigen zu 236. Similarly, in cases in which the consent of the person hurt does not operate to altogether Consent is a ground ayoid t ] ie cr iminality of the voluntary for mitigation or punish- . r -, ... - f .*, tnent in D case of bodily causing, of hurt, it is a ground for the injuries. mitigation of the punishment, and this for a similar reason. The fact that the injuries were received in a combat in which the parties engaged by mutual agreement may be shown in mitigation of damages. 35 Generally it is not a ground for the mitigation of the offence, as the varied character of the mitigation is not such as to enable the Legislature to give a separate name or to provide a separate maximum of punishment for the mitigated offence. In some countries, however, even a separate maximum or minimum is provided. Ferlangen is indeed something more than consent, but 142 of the German Penal Code provides the minimum of only one year's Gefdngniss for any one icelcher einen Anderen auf dessen Verlangen zur Erfiillung der Wehr- pjlicht untanglich macht." The ordinary minimum for the voluntary causing of grievous hurt is Zuchthaus for two years, (7>) Under circumstances even a defined circle is not necessary. Let us imagine a soldier mortally wounded who, tortured by the most frightful pains, begs generally that somebody may be found who will give him the deathblow. Every one in this case, whether friend or foe, who hears the urgent request is entitled to cause the injury. If, oa the other hand, consent has been given to a definite person, then only that person is justified in carrying out the act, as he who consents to an injury naturally must hare the free determination regarding the means or tool of which lie wishes to avail himself in order to allow the injury to be caused to his person. (c) Who at another's request makes him unfit for the fulfilment of the duty to serve in the Militia. 3 Barholt v. Wright, 45 Ohio, 177. 58 458 ABSENCE OP CONSENT IS AGGRAVATION. [S. 237. from wbicli it may be gathered how material the mitigation is ; and the punishment for the mitigated offence would have been still less, if at all, if it were not that the offence of causing grievous hurt in such a case is not so much against the person hurt as against the State and the Society, of which that person is a subject or citizen. 237. In case of offences independent of the consent of the person injured, in case of acts consented to ^ him which are an offence notwith- standing his consent the absence of con- sent is, on the same principles, an aggravation of the offence or of the penalty. Thus in India, the maximum period of imprisonment which may be ordered for causing miscarriage is three years, and if the woman should have been quick with child, seven years ; 3G yet when the miscarriage is caused without the consent of the woman, the offender may be punished even with transportation for life. 37 So causing her death by an act done with intent to cause her miscarriage is punishable with imprisonment only up to ten years, while, if the act is done without the woman's consent, the punish- ment may be transportation for life. With the exception of France, where the existence of consent will in such a case be deemed only as a circonstance attenuantc, the absence of consent is in almost every country deemed an aggravation of the offence. Thus in the Belgic Penal Code, which is to a great extent based on the Code Penal, the causing of abortion is, when with the woman's consent, punishable only with imprisonment from two to five years ; and when without her consent with the penalty of rcdusion. 38 So in Spain, it is, when with her consent, punishable with prison mineur, and when without her consent with jmson majeure. The aggravation is in some cases recognized not by the provision of a higher maximum of punishment, but by that of a minimum or a higher minimum. Thus the German Penal Code provides the punishment of penal servitude up to five years for anyone who, with the consent of a female with child, has applied or administered to her the means to procure abor- tion or slay the child in the womb. 39 Anyone, however, who wilfully slays or procures the abortion without her knowledge , * 36 S. 312,1 P.O. I 33 S.S. 350&348. " S. 313, I. P.O. so S.218. S. 238.] MERE APPROVAL ALSO CAUSES MITIGATION OF PUNISHMENT. 459 or consent is to be punished with penal servitude for not less than two years ; and if her own death be caused by the act, with penal servitude for life or for a term of not less than ten years. 40 In the Italian law, the aggravation is provided for by the raising of both the maximum and the minimum punishments provided for the offence. Thus the Italian Penal Code enacts that a person procuring abortion with the consent of the woman is punishable only with reclusion for a term of not less than three months and not more than five years ; and if her death should have been caused thereby, for a term of not less than four and not more than seven years. On the other hand, the mere employment of means to procure abortion without her consent or against her will, is punishable with reclusion for a term of not less than three months and not more than six years ; and if abortion should take place, the term may extend to twelve years, and shall not be less than seven years; and if the woman should die, it may extend even to twenty years and shall not be less than fifteen years.* 1 238. It is almost a universal principle that even an approval Even approval, not not amounting to consent is a cause of, amounting to consent, and leads to, a mitigation of punishment, causes a mitigation of This is generally the case with the subse- punishment. quent approval of the act constituting the offence in the absence of consent. The Spanish Penal Code thus provides the punishment of prison correctionnelle for a minor contracting marriage without her father's or mother's consent ; and even a subsequent approval of the marriage is held to mitigate the offence, and render it punishable with only the penalty of arret majeure* 42 *o g. 220. | 41 S.S. 383 &384. | * 2 Art. 399. 450 CONSENT CANNOT GIVE JURISDICTION. [S, 239, CHAPTER XIL CONSENT IN PROCEDURE. Quilibet potest renunclare juri pro se introducto. 239. This principle is of a general application, applicable to criminal as well as civil proceedings. It is ' however > essentially restricted to legal provisions intended for the benefit of individuals, and does not apply to the rules based on public policy and general considerations. It naturally has not much application to questions of essential jurisdiction, which, speak- ing generally, comes from law and not from the consent of litigants. 1 Thus consent cannot authorize a court to act in a cause outside the sphere which the law has ordered for it. In Bhoopendro Nath v. Kalee Prosunno* the defect of jurisdic- tion was not of a subjective character, but there was an application for taking out the execution of an agreement which was not of the character of a decree. The conduct of the judgment-debtors, in so far as it could operate in that way, had been such as to induce the new decree-holders to believe that they could obtain by execution all that they were seeking for, and yet execution w T as not allowed, as the consent of the parties could not give jurisdiction. Some enactments expressly provide that a particular class of courts may, on parties' consent, try and dispose of certain cases ordinarily beyond their jurisdiction. The Presidency Small Cause Courts Act 3 thus provides that when the parties to a suit, which, if the amount or value of the subject-matter thereof did not exceed two thousand rupees, would be cog- nizable by the Small Cause Court, have entered into an agreement in writing that the Small Cause Court shall have jurisdiction to try such suit, the Court shall have jurisdiction to try the same, although the amount or value of the subject- matter thereof may exceed two thousand rupees. Similarly, the County Courts Act, 1888, in England provides 4 with respect to all actions assigned to the Queen's Bench Division of the High Court, that if both parties shall agree by a memorandum signed by them or their respective solicitors 1 DiclB r. Hatch, 10 Iowa. 380. I a S 20. XX, V W. H., 205. * S.G4. S. 239.] CONSENT CANNOT GIVE JURISDICTION. that the judge of any Court named in such memorandum shall have power to try such action, such judge shall have jurisdiction to try the same. So also, 8. 61 of the same Act provides that in any action in which the title to any corporeal or incorporeal hereditament, or to any toll, fair, market, or franchise, shall incidentally come in question, the judge shall have power to decide the claim which it is the immediate object of the action to enforce, if both parties at the hearing shall consent in any writing to the Judge having such power. These cases do not constitute an exception from the rule that the courts acquire their jurisdiction from law, as mere consent could give no jurisdiction in the absence of the special provisions which empower the court or the judge to act in case of the parties' consent, on the same principle on which it authorizes them to act in other contingencies. Nor can consent oust the jurisdiction of any court. Thus in Crawley v. Luchmee Ramf the Principal Sudder Ameen dismissed the suit on the ground that the bills of lading pro- vided that a claim under them should come before the High Court of Calcutta ; but the dismissal was set aside by the Agra High Court, as it did '* not consider that any clause which ousts the jurisdiction of the Civil Courts of these Pro- vinces in cases of dispute between the parties in favour of the High Court of Calcutta, which in such a matter has no jurisdic- tion, could have any legal effect or could be pleaded in bar of a suit brought into a competent Civil Court having jurisdiction, by either of the parties." It is on this principle, that a person who is not a judge cannot act as a Judge. The Supreme Court of Illinois has repeatedly held both in civil and criminal cases, that a mem- ber of the Bar, even with the consent of the parties, cannot exercise judicial powers, and any judgment passed in their exercise w r ill be void. 6 So far is the rule carried, that if a Magistrate goes outside the local limits of his jurisdic- tion, he has no jurisdiction whatever, and no waiver or agreement made before him by the - claimant of the property attached by him can give him jurisdiction. 7 6 1 Agra, 129. I Bishop r. Kelson, 83 111., 495. e Hoagland v. Creed, 81 111., 506. Cobb r. People, 84 111., 511. i Blook v. Henderson, 82 Ga., 23. 4C2 CONSENT CANNOT GIVE JURISDICTION. [S. 240. 240. The inefficacy of consent in regard to jurisdiction applies Consent cannot give specially to jurisdiction over the subject- jurisdiction over subject- matter, which cannot be given or en- matter * larged by consent even in civil cases. 8 Mr. Hawes, in his work on the Jurisdiction of Courts, says : " Defects in the jurisdiction of a court over the subject- matter of a cause are fatal and cannot be waived. No act or consent of parties in such a case can confer jurisdiction. 9 . . . When a tribunal has not jurisdiction over the subject-matter, no averment can supply the defect ; no amount of proof can alter the case. Neither the acquiescence of the parties, nor their solicitations, can authorize any court to determine any matter over which the law has not authorized it to act." 10 In Jackson v. Ashton, n the bill was dismissed for want of jurisdiction, even though the opposite party not only did not raise any objection to the jurisdiction, but "was anxious that the court should hear and determine the cause," and the defect in the jurisdiction arose merely from a non-description of the circumstance which could give jurisdiction to the court. So far is the rule carried, that, as observed by Mr. Hawes, 12 " when jurisdiction is by law conferred upon a court, only upon the existence of certain conditions, parties may not waive the conditions and thus confer jurisdiction." In India also, it is quite settled, that even express consent of the parties cannot confer on a court such jurisdiction as it does not possess, 13 and that it will not give power to a court to pass a decree which it is otherwise not competent to pass. 14 In The Government of Bombay v. Eanmalsim/ji 15 the suit was for immoveable property in foreign territory, and both the parties were willing that the case should be decided on the merits, yet the lower court's decree was set aside by the High Court " as having been made without jurisdiction ; " Sargent, C. J., observing in the judgment of the court that " no consent . -i. . . , . of parties can give to the court a jurisdiction which it does not possess over the subject-matter of the suit." 8 Doctor v. Hartman, 24 Ind., 221. Damp v. Town of Dane, 29 Wis., 419. Fleisclmmu v. Walker, 91 111., 3.18. 9 P. 13. 1 Wanslcy r. Robinson, 23 La. Aim., 793 ; St. Louis and S. Co. r. Sando- valC. Co.,111 111,. 33. " 8 Pet., 148. 12 Ha\ves Juris., 16. 13 Kadambinee Dossee v. Doorga Churn Dutt, Marsh., 4. 14 Eanjrao Tatyaji v. Babaji Dhonji, I. L. R., XX Horn. ,632. i 5 IX B. H. C. R., 242, S. 241.] CONSENT CANNOX GIVE JURISDICTION. 453 This was expressly recognized by tbe Judicial Committee of the Privy Council in Ledaard v. Bull ; 10 in which Lord Watson, in delivering their Lordships' judgment, observed that '' when the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter and be bound by his decision on the merits when these are submitted to him." The observation was ultra, vires, but it has been repeatedly followed in the Indian courts. Thus in Ladli Becja in v. Raje Rabia 17 the defendant objected to the jurisdiction of the Original Court, but on appeal by the plaintiff from the decision which was in his favour, he did not take that objection in the lower Appellate Court, where the decision was against him. On appeal to the High Court, the decree was set aside for want of jurisdiction, it being held that the failure to take the objection in the lower court, '* would not clothe the District Court with a jurisdiction not given it by law." 241. The same rule applies to appeals also. Thus in Aukhil Chunder Sen v. Mohiny Mohun Consent cannot give p IB Morris J observed that the lunscliction over ap- - r ' ,. .. r .-, p ea l s> preponderance of authority favors the view that where a Court has no juris- diction to entertain an appeal, no consent of parties can give it a jurisdiction which it does not by law possess." In Minakshi v. Subramanya there was no subjective defect of jurisdiction, and the defect arose only from the circumstance that the appeal was not allowed by law. No objection was taken while the appeal was pending before the High Court, and it was contended before the Judicial Committee of the Privy Council that the right to object to the jurisdiction must be considered to have been waived. The contention was overruled, however, and Sir Richard P>aggallay, in delivering their Lordships' decision, observed, that " no amount of consent under such circumstances could confer jurisdiction where no jurisdiction exists. . . There was an inherent incompetency in the High Court to deal with the question brought before it, and no consent could have conferred upon the High Court that jurisdiction which it never possessed." In the United States, Mr. Hawes observes that neither con- sent nor long acquiescence of parties will give an appellate 18 L. R., XIII I. A., 134. I 1S I. L. R., V Cal., 489. I. L. R., XHI Bom., 650. 19 L. R., XIV I. A., 160. 464 OBJECTION TO JURISDICTION MAY BE TAKEN AT ANY STAGE. [S. 242. court jurisdiction over an appeal. 20 It lias been repeatedly held, that a criminal case not ripe for appeal, cannot be carried into the Appellate Court by agreement. 21 In Perkins v. Perkins 93 it was said that the appearance of the plaintiff after the appeal, and submitting to the jurisdiction of the court by proceeding to trial on the merits, were equivalent to a waiver of all excep- tions to the appeal and to the jurisdiction of the court. This was also admitted to be the law, "when the want of jurisdiction arises from the want of legal notice." The court after observing that, pointed out that *' when the want of jurisdiction appears of record, the defect cannot be supplied by the submission of the party ; for the agreement of the parties cannot alter the law, nor make that good which the law makes void." In some cases, the objection to the jurisdiction is allowed to be taken even by the appellant. 22 a .242. It is on this very ground, that it is considered a general maxim, that the plea of juris- _ Objection to jurisdic- diction, w } iea apparent on the record, tion may be taken at any , , , ,, ,, stage of proceedings. ' may be taken at any stage of the pro- ceedings; 23 and cannot be considered waived by the parties. 24 Thus in Wahid All v. Inayet AH?* even a plea as to the execution not being barred by limitation law was treated as one of jurisdiction, and allowed to be raised for the first time after remand on special appeal. In Oanpatrao v. Bai SurQJ* the defect of jurisdiction consisted only of the circumstance that the court was not of the lowest grade competent to try the suit, and an objection to it was allowed to be raised for the first time on special appeal from the final decision, even though the first order of remand by the lower Appellate Court was not appealed against. In Naiuihoo Singh v. To/an Singh* 7 the objection to the JVloonsiff's jurisdiction was allowed to be taken, for the first time, when the case went to the High Court a second time on special appeal, though the parties had allowed five adjudi- cations in the courts below without raising any objection as to that point. In Macdoncdd v. Riddell* the plea to the jurisdiction was allowed to be taken for the first time on 20 Hawes Juris., 15. 2-1 Eutter r. State, 1 Iowa, 99. People v. Myers, 1 Colo., 508. 42 7 Conn., 558. 22 Piano Manu'fing Co. v. Kasey, 69 Wis, 246. 33 Nobeen Kishen Mookerjee r. Slab Pershad, VII W. E., 4UO. Ni'lhi Lai r. Mazhar Hussain, I.L.E. VII All., 230. 24 Lalmoney Dassee r. Jaddoonath Shaw, 1 In. Jur., X. S., 319. 23 VI B. L. E., 52. " VII B. H. C. R. A. C., 79. 2 * XIV W. E.,229. 23 XVI W. E. Or., 69. S. 242.] OBJECTION TO JURISDICTION MAY BE TAKEN AT ANY STAGE. 455 special appeal, and Ainslie, J., in delivering the judgment of the court, observed that '* neither the ignorance and conse- quent silence of the parties, nor their consent, can vest a magistrate with powers which the law does not give him." In Trimbakji v. Tomu, 29 the Bombay High Court even allowed a plaintiff who had instituted the suit in a court to object for the first time to the jurisdiction of that court on special appeal. It was contended that the plaintiff having himself selected the forum could not take that objection, but the contention was overruled on the ground " that if express consent could not give jurisdiction, much less could a mistake in the selection of a court to bring a suit in." It is sometimes indeed held that the objection to jurisdic- tion may not be taken for the first time on the second appeal, and the prohibition. is not seldom extended even to the first appeal. 30 So far is the rule carried, that in Mohammed Hossein v. Akhaya Narayan* 1 the objection was taken in the first court, but still held to be waived, as it was not taken in the lower Appellate Court. This is, however, usually in cases in which the facts giving rise to the objection are not patent on the record ; as it is presumed that it there were an irre- gularity, the objection would have been raised at an earlier stage of the proceedings, when its correctness could easily be tested. Most of the decisions against taking the objection at a later stage are expressly coupled with the proviso that the objection, when apparent on the face of the record, may be taken at any stage. 32 In Bapuji Auditram v. Umedbhai 33 the objection to the jurisdiction was not allowed to be raised for the first time on special appeal, as it was not patent on the face of the record that the court of the first instance had no jurisdiction. The general rule thus is, that if the original court find a jurisdictional fact so as to retain the jurisdiction, and the finding is not appealed against, objection to the jurisdiction may not be taken on the second appeal. 34 In Koylasli Chunder v. Ashruf All? 5 a suit was remanded for trial on the merits by the lower appellate court, which held 89 II B. H. C.R.,192. 3 Nahmulda r. Scott, III B. L. R,, 283. 3i II B. L. B. App., 42. 38 Gooroo Persad Roy v. Juggobuucloo Mozoomrlar, W. B. F. B., 15. 33 VIII B. H. C. B., A., C., 245. 3 * Raj Narain v. Bowshun Mull, XXII W. R., 124. 35 XXII W. B , 101. 59 ESTOPPEL FROM PLEA OP JURISDICTION. [S. 2*3. it to be within the jurisdiction of the original court; and on second appeal from the decision on the merits, the objection to the jurisdiction was not allowed to be raised, as it had not been raised at the proper time on appeal from the order of remand. This decision does not, however, appear to be tenable, as merely not appealing from an order at once does not necessarily estop a party from objecting to it on appeal from the final decision in the proceedings. Thus in Goodall v. Mussoorie Bank nn assignee from a judgment-debtor who was not a party to a suit was made a party to the execution- proceedings, and the order making him a party was not appealed against. He appealed, however, against a subse- quent order asking him to produce the shares which had been assigned to him, and directing that in case of default, his property was to be sold. It was contended that objection could not then be taken to the jurisdiction to pass the first order making him a party ; but the contention was overruled, Straight, J., observing that he had "no hesitation in holding that in an appeal of the kind before me, where the objection goes to the very root of the matter and to the authority of the Court to make the order in the sense that it had no jurisdiction at all, I am entitled to entertain it, and if it has force, to give effect to it." 243. However though express consent or waiver will not give jurisdiction to a court over a suit or Lstoppel from plea or -i > -\ , j -, , jurisdiction appeal which it does not possess by law, a party may well be estopped from pleading the absence of jurisdiction by failure to take objection to it at the proper time. This is specially the case in India, where unlike England there is a system of courts organized in a regu- lar gradation of dependence on the High Courts, and where an error as to jurisdiction may always be corrected on appeal or review. In England, this was not practicable, and unless a prohibi- tion were granted, or the proceedings quashed on a certiorari, there was no other way to try the jurisdiction than by an action against those who made or acted on the order. Thus an action of trespass was suggested by Martin, B., in Denton v. Marshall as the proper way of trying the validity of an order of a County Court. Naturally absence of jurisdiction was held " ; I. L. R., X All. 97. I sr 32 L. J. Ex., 89. s. 2-43.] ESTOPPEL FROM PLEA OF JURISDICTION. 457 there to make the proceedings absolutely null, as if they had not taken place at all. Even there, however, a change is being made. Thus in Steed v. Preece, 3B the Master of Rolls considered it a good answer to an application founded on the court having sold property without jurisdiction, that there was a decree standing unreversed, and directing the sale. S. 114 of the County Courts Act directly contemplates that whenever an action or matter is commenced over which the Court lias no jurisdiction, it shall be struck out, only " unless the parties consent to the court having jurisdiction." The rough method of treating the order of a Court as no order at all, or of seeking by a suit to expel a person whom that order has defi- nitely placed in possession, has no proper application where provision is made for such a proceeding, and where the order itself may be brought under review by precisely the same authorities , who will have to dispose of the suit brought to test its validity. West, J., in delivering the judgment of a Division Bench of the Bombay High Court in Naro Hari v. Anpurnabai said : " By providing the one method of redress, the Legislature has tacitly excluded the other. . . . There seems to be no reason, on principle, why, in India and for a Court having general juris- diction, a question of jurisdiction arising on this point (subject- matter) should not, at least as regards the party on whom the jurisdiction immediately bears, be concluded by submission, or by failure to take the steps, which the law prescribes for getting rid of an erroneous order just as much as a question of personal jurisdiction. Every decree is a command to a person, and whether his possible ground of objection is that the Court has no jurisdiction to command him at all, or none to command him in the particular case and as to the particular subject- matter, seems to make no difference in principle. ... It is commonly said that a question of jurisdiction may be raised at any time ; where proceedings are laid down for determining the question, it should be 'any time in the course of those proceedings.* He, who, having an appeal and a special appeal on a question of jurisdiction, has not availed himself of those remedies, renundavit juri pro se introducto. The public in- terest is not concerned when the matter has once been placed before a Court having full jurisdiction over the person and the cause, and an omission to urge objections there is to be treated when the proceedings have been completed as conclusive/' 3S 18 Kq.. 19J. ( 3 I. L. TL, XI Bom. 1GO (n). ESTOPPEL FEOM PLEA OF JURISDICTION. [S. 243- The Calcutta High Court also has taken the same view. Thus in Teekum Loll Dass v. Peter Mac Arthur,* a decree for rent obtained from a civil court was sustained on the ground of the defendant's acquiescence in the court's jurisdiction over the suit. Markby, J., in delivering the judgment of that court in Drobo Moyee v. Bipin Mundid* 1 observed, that "the appli- cant took his chance of a decision in his favour in the Court of the Collector, without in any way protesting against the jurisdiction. And though his conduct in this respect will not give that court jurisdiction, still, it is, in our opinion, sufficient to prevent him coming before this Court, and asking it to exercise its extraordinary powers of relief in his favour, by setting aside proceedings of which he was willing enough to avail hirnsnlf so long as there was a chance of their turning out to his own advantage." In Ooma Sunduree v. Bepin Beharee^ 1 a suit was brought to set aside, on the ground of fraud, a sale made in execution of a decree of a Revenue Court, and the sale was not allowed to be impeached for want of jurisdiction, as that objection had not .been taken in the prior proceedings and not even in the plaint in that suit. InRadha Gobind Gossami v. Ooma Sunduree D o ssia, 43 a decree of a Burdwan Court wets transmitted for execution to Beerbhoorn District, and in the course of execution-proceedings there, some property was attached, and the judgment-debtor prayed for a month's time, alleging that if the debt was not satisfied in that period, the property attached might be sold without further notice ; and after that a plea to the jurisdiction of the court passing the decree was not allowed to be taken by him. In Nehora Roy v. Radha Pershad Singh, 1 * an objection as to the jurisdiction of a court executing a decree was not allowed to be taken after the proceedings had been carried on for ten years in that court, without any objection to the jurisdiction and with full acquiescence in it. In Gopi Nath v. Bhugwat Pershad^ Mitter, J., in delivering the judgment of the court observed, that "in the suit of 1860, there was no objec- tion taken that the Munsif had no jurisdiction to entertain it, arid, therefore, the parties being the same, it may be taken as conclusively decided by that suit as between them that the Munsif in that suit had jurisdiction to entertain it." 40 1 W. B.,279. *i X W. R,fi. 42 XTII W. II., 292. * 3 XXIV W. R., 363. ** IV C. L. K., 353. * 5 I. L. R. X Gal., 707. S. 243.] ESTOPPEL PROM PLEA OF JURISDICTION. 459 The Indian legislature also has adopted the same view. Thus it has been enacted in the Suits Valuation Act, 1^87, that tin objection that, by reason of the over-valuation or under- valuation of a suit or appeal, a court of first instance or lower appellate Court, which had not jurisdiction with respect to the suit or appeal, exercised jurisdiction with respect thereto, shall not be entertained by an appellate Court unless: (a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the Lower Appellate Court in the memorandum of appeal to that Court, or (6) the Appellate Court is satisfied, that the suit or appeal was over-valued or under- valued, and that the over-valuation or under-valuation thereof has pre- judicially affected the disposal of the suit or appeal on its merits. Even in cases, in which an objection is allowed to be taken, the proceedings shall not be deemed void on account of it, but the Appellate Court, unless satisfied that the mistake prejudicially affected the disposal, shall proceed to dispose of the appeal as if there had been no defect of jurisdiction ; and when it is satisfied of the prejudice, and not having the materials necessary for the determination of the other grounds of the appeal to itself', remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a court competent to entertain the suit or appeal. It is further declared in the Act, that the same provisions shall apply so far as may be, to a Court exercising revisional jurisdiction. These provisions are of a very comprehensive character, and apply not only where the over-valuation or under-valuation is due merely to a mistake in estimating the value of the subject-matter, but also where there has been a mistake in principle, 46 or even an inten- tional over-valuation with a view to exclude the jurisdiction of a court of exclusive jurisdiction. 46 a Similar provisions have been enacted in regard to some other cases also for avoiding the ordinary consequences of an absence of jurisdiction, but further rei'erence need not be made to them here. 47 A similar view appears to have been taken in some cases in the United States also. Thusin J/rtj/s v. Fritton^ the objection was- that the State Court had no jurisdiction over the proceed- ings, and Hunt, J., in delivering the opinion of the Court, * 6 Krishnasami v. Kanakasabai, I. L. R. XIV Mad., 183. * 6 a Hamidunessa r. Gopal Chandra, 1 Cal. W. N., 550. * 7 Chand's Res. Jud., 422. * s 20 Wall., 414. 470 WAIVER OF DEFECT OF CERTAIN SORTS OP JURISDICTION. [S. 244. said: "To be available here an objection must have been taken in the Court below. Unless so taken it will not be heard here. It is not competent to a party to assent to a proceeding in the Court below, take his chances of success and, upon failure, come here aud object that the Court below had no authority to take the proceeding. This point comes before us at every term and is always decided the same way." In Ponder v. Moselley Lancaster, J., in delivering the opinion of the Court observed that "the defendants having appeared in Court, and pleaded to the action, thereby admitted legal notice of the institution of the suit, as well also as the jurisdiction of the Court, not only of the parties to the action, but also of the subject-matter of the suit." This can of course apply to the facts on which the jurisdiction over subject- matter depends, but will not affect a case in which the defect of jurisdiction is apparent on the record. 244. There is a greater unanimity of opinion as to the waiver of the defect of jurisdiction Waiver of defect of other than that over subject-matter. Thus certain other sorts of... ,, -j j ..u *i jurisdiction. jt ls generally considered that the non- existence of other facts necessary for the jurisdiction may be waived. For instance, v\ here it depends on the residence of the parties or other similar facts, consent will, in the absence of special circumstances, be deemed to establish those facts, and an objection to their existence may be waived. 50 Thus Mr. Black 1 observes: " We are told that it is only when a judge or court has no jurisdiction of the subject-matter of the proceeding or action in which an order is made or a judgment rendered, that such order or judg- ment is wholly void, and that the maxim applies that consent cannot give jurisdiction. In all other cases the objection to the exercise of the jurisdiction may be waived, and is waived when not taken at the time the exercise of the jurisdiction is first claimed." 2 As an instance, reference may be made to the effect of consent on the courts' power to give a decree in regard to * 9 2 Flo. ,207. 60 Lucking v. Denning, 1 Salk., 200. Buieau 15. Thompson, 39 111., 566. State r. Harper, 28 La. Ann., 3.5. State r. Regan, 67 Mo., 380. Mininger ?. Carver Commissioner*, 10 Minn., 133. ] Black Jud., 264. Urady v. Riohardsou, 18 Ind., 1. * Hobnrt c. Frost,, 5 Duor, 072. 8. 24*.] WAIVER OF DEFECT OF CERTAIN SORTS OF JURISDICTION, matters connected with a claim. Thus it is a general rule that a court has jurisdiction only to decide the issues raised by the pleadings, and if it goes beyond them, all the provisions relating to the matters outside the pleadings are deemed void. 3 This rule does not apply, however, *to a consent decree which is not invalid, if its provisions do not go beyond the general scope of the case made by the pleadings. Thus in Fletcher v. Holmes* a suit was brought to foreclose a mortgage, and a personal decree given against the defendant by consent. Referring to the decree, the Court said : ' It cannot be doubted tliat without May's consent such a judg- ment against him, upon that complaint, would not have been warranted. But he consented to it. Was it then void as against May, because the complaint -did not allege sufficient facts to justify it without such consent? We can conceive of no reason why a judgment entered by agreement, by a Court of general jurisdiction, having power in a proper case to render such a judgment, and having the parties before it, should nofc bind those by whose agreement it is entered, notwithstanding the pleadings would not, in a contested case authorise such a judgment. The object of a complaint is to inform the defen- dant of the nature of the plaintiff's case. It is for his protec- tion that it is required. If he wishes to waive it, or agrees to the granting of greater relief than could otherwise be given under its averments, without amendment, and such relief is given by his consent, we think that the judgment is not even erroneous, and much less void as to him/' And this was cited with approval in Schmidt v. Oregon Gold Mining Co.f in which case certain costs of a referee and stenographer were allowed with consent, even though they had not been claimed. The waiver will, of course, not affect the rights of any person other than the parties to the suit. Thus a judgment obtained in a district other than that of the defen- dant's residence, on an agreement between the parties to acknowledge the jurisdiction, was held to be void as against subsequent judgment-creditors who obtained their judgments in the proper district. 6 In Sankumani v. Ikoran, 7 a person objected to the attachment of his property in execution of a decree on the ground that the court passing the decree had no jurisdiction to pass the same, as the suit in which the decree s Vide Chard's Res. Jud., 451 453. * 25 Ind., 458. s 23 Oreg., 9. 6 Georgia Rail. & Bank Co. v. Harris, 5 Ga., 527. i I. L. R., XIII Mad., 2U. 472 WAIVER OF DEFECT OF CERTAIN SORTS OF JURISDICTION. [S. 244. was passed had been transferred to that court without notice to the defendant in that suit; and the objection was disallowed on the ground that the defendant had waived the same by not raising it at the proper time. It is, however, to be borne in mind, that this objection was in regard merely to a matter of procedure, and the court had jurisdiction over the proceedings as between the decree-holder and the objecting party. The court thus said: 'Nor do we think that the present defendants, who were no parties to the decree in original suit No. 25 of 1883, and as between whom and the plaintiff the execution-creditor in the Cochin Subordinate Court, the Calicut Subordinate Court has jurisdiction, are entitled to rely on the provisions of section 25, of which the defendants in originnl suit No. 25 of 1883 did not avail themselves and thereby call in question the jurisdic- tion of the Cochin Subordinate Court." Nor do the courts recognize collusive agreements entered into simply with a view to give jurisdiction to a court. Thus in Cameron v. Hodges* Miller, J., in delivering the opinion of the United States Supreme Court, said : '* This court has uni- formly acted upon the principle that, in order to protect itself from collusive agreements between parties who wish to litigate their controversies in the Federal Courts, it would, on its own motion, take the objection of the want of jurisdiction in the Circuit Court especially as regards citizenship. 5 ' This appears to be due chiefly to the circumstance that in cases before Federal Courts, the citizenship of the parties is often an essential constituent of jurisdiction. It has thus been repeatedly held by the Supreme Court of United States, that the question of jurisdiction in such cases when dependent on the citizenship of the parties must be determined by the court, even if the parties do not raise it, or expressly aver that the case be con- sidered upon its merits. 10 Thus in Hartog v. Memory, 11 the Court said: " If, from any source, the court is led to suspect that its jurisdiction has been imposed upon by the collusion of the parties or in any other way, it may at once of its own motion cause the necessary enquiry to be made, either by having the proper issue joined and tried, or by some other appropriate form of proceeding, 8 20 Davis. 322. 9 19 Wall., 81 ; 1 Daris, 65. 10 Mansfield r. Swan, 4 Davis, 379. Blacklock v. Small, 20 Davis, Oo. Motcalfe r. Watertown, 21 Davis, 58(i. King Bridge Co. r. Otoe, 13 Davis, I Morris v. Gilmcr, 22 Davis, 315. 225. 11 9 Davis, 568. S. 245.] WAIVER OF DEFECT OP LOCAL JURISDICTION. and act as justice may require, for its own protection against fraud or imposition. 245. In India, it appears to be generally held that the defect of local jurisdiction also may not Waiver of defect of be vvaived> T llUS ill Bdbaji V. Ldkshimi- local jurisdiction. 7 , ,, .. ~ . . , / . . oai, the Original Court asserted its jurisdiction on the ground that the bond sued upon was executed within the local limits of its jurisdiction. Two of the defendants had not objected to the jurisdiction, and it was contended before the High Court, that the lower Appellate Court could not set aside the decree at least as against those o two. The contention was, however, overruled, and West, J., in delivering the judgment of the High Court, observed, "that consent or appearance does not give jurisdiction to a court of limited jurisdiction, though the waiver may be sufficient in a court of superior jurisdiction. . . . The consent which waives an irregularity or allows the court to exercise a power vested in it on a wrong reason instead of the right one, on which it might have rested, cannot give the authority itself as an attribute of the Court which must directly or indirectly emanate from the sovereign." The observation as to the waiver in a court of superior jurisdiction was made with reference to the decision in Oulton v. Radc&iffeJ* in which that doctrine was based on the ground that the Palatinate Court in that case was a superior court, having ** jurisdiction over matters arising elsewhere than within the county." It is clear that in the case of such courts, the question of the absence of local jurisdiction could not arise. Brett, J,, expressly pointed out, however, that " if its jurisdiction had been confined to the limits of the county, I should have thought that that would have made it a court of inferior jurisdiction." In this sense, all the courts in British India would be inferior courts, in connection with which the absence of local jurisdiction may not be waived. In Narain Das v. Kotu Mcu, the defect, was of local juris- diction, as the defendants resided outside the local limits of the Court's jurisdiction, and jurisdiction was claimed only on the ground that the defendants' agent executed the hundis sued upon inside those limits, which was finally held not to constitute a cause of action. On first appeal, the counsel for the i I. L. B., IX Bom., 266. | ls 9 C. & P., 189. i* 1883 P. B., No. 132. 60 474 WAITER OF DEFECT OF LOCAL JURISDICTION. [9. 245, defendants expressly stated before the lower Appellate Court that he had no objection on the ground of jurisdiction ; but on a subsequent appeal to that same court he raised that objec- tion, and the court disallowed it on the ground of the prior consent. The Punjab Chief Court, however, held that the objection could be raised at that stage, Rattigan, J., in delivering the judgment of the court, observing that, "if, as is settled law, the express consent of parties cannot confer jurisdiction on a court which does not otherwise possess it ; the omission or refusal on the part of the defendant to raise the objection of want of jurisdiction cannot relieve the court which is trying the suit, of the duty of determining whether it has or has not jurisdiction to hear it." Section 20 of the Civil Procedure Code, however, directly contemplates cases in which a suit may be brought against a person in a court simply because another defendant resides or carries on business or works for gain inside the local area of its jurisdiction ; 15 and under that section, the objection by the person outside the jurisdiction must be made at the earliest opportunity, and in all cases before the issues are settled : and any defendant not so applying is deemed to have acquiesced in the institution of the suit in that court. In some such cases, proceedings can be commenced only after special leave has been obtained. Thus the Charters of the Presidency High Courts provide, that, in suits other than those for land or other immovable property, if the cause shall have arisen only in part within the local limits of their respective ordinary original jurisdictions, a suit may bo brought in them, " in case the leave of the court shall have been first obtained." Similarly, the English County Courts Act, 1888, 16 provides that every action or matter may be commenced by leave of the judge or registrar, in the court within the district of which the defendant, or one of the defendants, dwelt, or carried on business, at any time within six calendar months next before the time of the commence- ment, or, with the like leave, in the court, in the local limits of whose jurisdiction the cause of action or claim wholly, or in part, arose. 15 Viraragav r. Krishnasami, I. L. j lfl 51 & 52 Viet., 0. 43, S. 74. R., VI Mad., 311. c S. 245 ] WAIVER OF DEFECT OF LOCAL JURISDICTION. 475 In those cases, the plaintiff's consent is the very origin of the jurisdiction of the Court. The defendant's consent is not directly material, and the objection to the nun-existence of jurisdiction is, in all such cases, deemed to be waived, if the defendant proceeds without making the objection. Thus, in Jones v, James the defendant who had, for five years, resided out of the jurisdiction of the County court, in which the cause of action arose, was served with a summons issued out of that court, and was, at the time, served with an order of the judge of that court, more than two years before, granting leave to the plaintiff to issue a summons against the defendants. The defendant gave notice to the clerk of his intention to rely upon the defence of the Statute of Limitations, and afterwards moved for a prohibition; and it was held, that this notice.was equivalent to pleading, and " by thus coming in and pl'eading, the defendant deprived himself of the power of examining minutely into the regularity of that process by which he was called upon to appear, and that, as against him, it must be considered as perfectly valid.' 7 Erie, J., in the course of the argument pointed out, that '* where an inferior Court has no jurisdiction from the beginning, a party by taking a step in a cause before it does not waive his right to object to the want of jurisdiction ; but jurisdiction is sometimes con- tingent ; in such case, if the defendant does not, by objecting at the proper time, exercise his right of destroying the juris- diction, he cannot do so afterwards." In Moore v. Ganjee, 19 leave had not been obtained and the case was heard and partly decided before the objection was taken, and it was, therefore, held to have been waived. Cave r J., with whom Smith, J., concurred, observed, that " the objection to the jurisdiction of the Court may be waived by taking any step in the proceedings before applying to dismiss the action." In the United States also, it is held that where the place of trial is changed by consent, no order for such change is necessary, and the consent of the parties, and the filing of the papers in the court to which the cause is transferred, is all that is required to give jurisdiction to that court. 19 In regard to criminal proceedings, the law is quite settled in British India, as S. 531 of the Criminal Procedure Code " 10L.J. (Q.B.),257. I 18 25 Q. B. D., 241 is Woodward r. Hanchett,52 Wis.,982. 476 WAIVER OF DEFECT OP JURISDICTION OVEB PERSON. [SS 246, provides that no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at, or passed, took place in a wrong Sessions Division, Dis- trict, Sub-division, or other local area, unless it appears that such error occasioned a failure of justice. 20 246. In ordinary cases, it appears to be settled law, that the defect of jurisdiction over a person Waiver ot defect of u j i 21 rr n i jurisdiction orer person. ma J be waived b J mm ' . If a Court haS jurisdiction of the subject-matter, a party may voluntarily submit himself to such jurisdiction, or may, by failing to object thereto at the proper time, waive his right to contest it. InKenney v. Greer* 2 the question arose under a statute which prohibited the suing of a defendant out of the country where he resides or may be found, except in certain cases. Jt had been passed subsequently to the Acts conferring- upon the Circuit Courts general jurisdiction of all actions arising in the country, and for the benefit of defendants, and not to limit the jurisdiction of the Circuit Courts, and it was held that the right of not being sued in certain eases being a privilege of the defendant, he had the right to waive it, and must be deemed to have waived it, unless he made his objection to the writ served upon him in due time. 247. When the limitation of jurisdiction is in regard to a certain person or class of persons, he or Waiver of personal t j ie may Q f course wa i ve the privilege, exemption from luria- -s ,, J . . . ,'. . . r ., dicrita. an d thus give jurisdiction to the court. In Manohar v. Bhivravf* the defendant objected to the execution of a decree on the ground that he as a Sirdar, was not subject to the jurisdiction of the court passing it. A Full Bench of Bombay High Court disallowed the objection, and AVestropp, J., in the judgment of the Court, said: "Before the Munsif the applicant either did, or did not, raise the objection of want of jurisdiction. If he raised it, and the Munsif wrongly disallowed it, he ought to have appealed to the Judge ; and there would have been a so XXI \V. R. Cr., f>6 & 88. j Montgomery v. Town of Scott, 32 * l Aurora Fire Ins. Co. r. Johnson, Wis., 252. 46 Ind., 315. " 13 111., 432. JlcCaulcy v. Murdock, 97 Ind., 219. * 3 Gray r. Hawcs, 8 Cal., 568. Damp v. Town of Dane. 29 Wis.. 4,19. * II B. 11. C. R., A. C., 374. 8. 246,] WAIVER OF DISQUALIFICATION OF A JUDGE. special appeal to this Court. But if he did not raise it, he must be taken to have waived it; and it is certainly too late for him to raise it now, when the Munsiff's decree is sought toJbe executed." Independent Princes" and foreign ambassa- dors 26 are often held to be able to waive their privilege of exemption, and to elect to submit to the jurisdiction of any court. The Maharaja of Tipperah often waived his personal exemption from the jurisdiction of the civil courts in British India, though a waiver in one suit will not operate as such in other suits.* 7 The Criminal Procedure Code expressly pro- vides that a European British subject may waive his right of trial as such. 28 Speaking of the rule, Mr. Hawes observes, that " if a court lias jurisdiction of the subject-matter and over the person, and a defendant has some privilege, which exempts him from the jurisdiction, he may waive it, if he chooses to do so." 29 Mr. Herman also lays down that " a privilege defeating jurisdiction may be waived, if the court has jurisdic- tion over the subject-matter." 3 ' Thus, in McCormick v. Pennsylvania Central Railroad Co.? 1 it was held, that i; where the court has the jurisdiction of the subject-matter or cause of action, consent may confer jurisdiction of the person ; and that such consent may be expressed by a foreign corporation by appealing by attorney and answering generally in the action." It is somewhat on a similar principle, that, as observed by Dr. Bishop, 32 "with the defendant's consent, the venue may be changed back to the original county ; for, in the words of Stone, J., it is a matter of ' privilege secured to the prisoner, which he may waive, either before or after the order changing the venue has been entered.' 33 " 248. Judges are in some cases disqualified from trying particular causes, as for instance, on Disqualification of a accO unt of a direct interest in their result, Judge at common law , ,. , . -,11 may be waived. or * a relationship with the partie* to them. The disqualification in English 85 LadkuTarbai v. Ghoel Sarsangji, VII B. H. C. B., IfiO. Mighell v. Sultan of Johore, [1894] I Q. B., 149. 86 Taylor v. Best. i4 C. B., 487. 87 Beer Chunder Manikkya w. Nobodeep Chunder, I. L. H., IX Cal., 535. a* S. 454, Act X of 1882. 28 Hawes Juris., 16. 30 Herm. Comm., 67. 31 49 N. Y., 303. 38 1 Bish. Or. Proc., 44. 33 Paris v. State, 36 Ala., 232. 478 WAIVER OP DISQUALIFICATION OF A JUDGE. [8. 248. law is the result generally of common law principles. It is sometimes considered that the disqualification does net affect essential jurisdiction, and does not make the proceedings of the judge void. 34 It is held in some of the States of the American Union also, that the recusation of a judge does riot affect jurisdiction, but is merely a ground to set aside the judgment on error or appeal. 39 The weight of opinion, however, is in favor of the view, that the disqualification affects jurisdiction, but where it results only from common law, jurisdiction may be restored by consent, or by waiver express or implied, as by failing to raise the objection at the trial. M Thus in The Queen v. The Cheltenham Commissioners, Lord Denman, C. J., observed, that "if all parties know that he (magistrate) is interested, and make no objection, at any rate if there be any thing like a consent, or if he take a part upon b; j ing desirt-d to do so by all parties, it would be monstrous to say that the presence of the magistrate vitiated the proceedings." In Denning v. Norrls 93 the court held that, since the defendant had admitted the person presiding to be a judge by a plea to the action, he was estopped afterwards to say that he was not a judge. 30 In the United States also, it is held, that in such cases the parties by a joint application to the judge, suggesting the ground of recusation, expressly waiving all objection on that account, and requesting him to proceed with the trial or hearing, may give him full power to proceed as if no objection existed. 40 A tacit waiver is inferred against a plaintiff who brings his cause before a judge who is known to him to be disqualified to try it ; and against a defendant, who knowing the existence of just grounds of recusation, appears, and without objecting offers defences in the cause, either dilatory or peremptory. 41 In Posey v. Eaton t * 3 an order for sale of land was given by a judge related to one of the parties, and the Tennessee Supreme Court said: ''If the parties submit to the action of the judge at the time, the incompetency is considered waived, 3 * Hesketh v. Braddock, 3 Burr., 1847. 39 Gor/il r. Whittier, 3 N. H., 2(58. Stearns ?;. Wright, 51 N. H.,009. Heydenfeldt v. Towns, 27 Ala., 423. Gregory u. Cleveland, 4 Ohio, 675. McMillan v. Nicholls, U2 Ga., 36. 36 Wroe v. Greer, 2 Swan, 172. Sweepster *;. Gaines, 19 Ark.. 96. " 1 Ad. & El. N. S., 475. 3S 2 Lev., 243. 39 Andrews v. Lintou, Ld. Eaym., 8S4. *o Paddock v. Wells, 2 Barb. Ch., 333. 41 Ellsworth v. Moore, 5 Iowa, 486. Platt r. N. Y. & Boston R. B. Co., 26 Conn., 544. Grotoii v. Hurlbert, 22 Conn., 178. * 2 9 Lea., 500. S. 249.} WAIVER OF DISQUALIFICATION OF A JUDGE. 479 and not available on a collateral attack on the judgment." As a general rule, waiver is inferred if objection is not taken before issue is joined and trial commenced, except when the party was not awnre of the objection, and was in no fault for not knowing it. 43 A party, however, who has once declined the jurisdiction of a judg-e will not be deemed to waive it by any subsequent defence. 44 And while the principle of disqualification extends even to persons associated with a judge, as, for example, to assessors appointed by the parties themselves under the Land Acqui- sition Acts, 45 yet a waiver by a minor's guardian will not be sufficient, and an objection may be raised against it for the first time in appeal from the award ; and this on the ground that a waiver is a matter beyond the ordinary conduct of the litigation, and the presence of an assessor having an adverse interest can, in no case, be for the benefit of the minor. 249. The disqualification in India and most of the States of the American Union is expressly enacted or recognized by some statutes. Thus in India, the Criminal Procedure Code provides that no judge or magistrate shall, except with the permission of the court to which an appeal lies from his court, try or commit for trial any case to or in which he is a parl-y, or personally interested, and no judge or magistrate shall hear an appeal from any judgment or order passed or made by himself. 46 There are similar provisions in regard to civil proceedings in most of the Provinces of British India, even without any such qualification as that of a permission by the Appellate Court. 47 The prohibition in all such cases of a statutory disqualifica- tion is held to go to the jurisdiction, 43 and such as may not be waived, 49 except when it is also provided by the statute tion of a judge may not be waived. *s Adams v. State, 11 Ark., 4fi6. Shropshire ?-. State, 12 Ark., 190. Peebles v. Band, 43 N. H., 342. ** Ersk. Inst., 17. * 5 Kaehiiiath ?'. Collector of Poona, I. L. B,., VKI Bom., 553. Swamirao r. Collector of Dhanvar, I. L. R., XVII Bom., 299. * S. 555, Act X of 1882. * 7 S. 17, Act II[ of 1873. S. 23, Act XIII of 1879. S. 38, Act XII of 1887. 48 State i: Sachs, 29 Pac. Rep., 446. Frevert r. Swift. 19 Nev., 363. Templeton v. Giddings, 12 S. W. Rep., 851. *<> Claunch v. Castlebury, 23 Ala., 85. Darling v. Pierie, 15 Hun., 542. Haverley Min. Co. v. Howcutt, 6 Colo., 574. State v. Weiskitfcle, 61 Md., 48. Cobb v. People, 84 111., 511. Bedell v. Bailey, 58 N. H., 62. Fechener v. Washington, 77 Ind., 3fi6. Estate of White, 37 Cal., 190. 480 WAIVER OF DISQUALIFICATION OF A JUDGE. [S. 249. creating the disqualification that it may be waived by consent generally, or subject to any particular conditions. And the rule will apply even to a disqualification arising sub- sequent to the institution of the suit, which also will oust jurisdiction, so as not to be waived by consent. 50 The judge is divested so completely of his jurisdiction, and his acts are so utterly void, that they cannot be made good by any omission, waiver, or even the express consent of the parties. 1 It has been repeatedly held that there can be no waiver of the disqualification, and even express consent cannot restore jurisdiction to him over the consenting party's offence. 2 It has been held recently by the Texas Supreme Court in January v. State? that where a judge is disqualified from sitting in a case, the judgment rendered by him is a nullity, even though the parties agree to waive objections to the jurisdiction. This is on the ground that it is the policy of the law to with- hold from a judge all power or jurisdiction to act in any matter in which he has a personal interest, irrespective of the wishes or consent of the parties interested/ Mr. Works, in his work on the Jurisdiction of Courts, says : 5 "If the question of interest were one affecting the parties alone, they might properly be held to Waive it by consent or a failure to raise an objection. But it is a matter in which the whole public is interested. The rule that forbids one to sit as judge in his own case is one of public policy affecting the due and proper administration of justice, and should render void the proceed- ings of a judga affecting matters of private concern to himself, whether objection is made by the parties directly interested or not." In Chambers v. Hodyes* also, the disqualifying in- terest of the judge was attempted to be removed by consent, but the attempt was disallowed on the same high grounds of 80 Low r. Rice, 8 Johns,, 409. Clayton v. Per Dun, 13 Johns., 218. 1 Chambers . Clearwater, 1 Keycs, 314. Hancock, 27 Hun., 82. Choonmaker r. Clearwater, 41 Barb.. 200. Peninsular R. Co. r. Howard, 20 Mich., 25. People r. DC la Guerra, 24 Cal., 73. Mat-ray r. State, 34 Tex., 331, 2 Oil City v. McAboy, 74 Pa. St., 249. Batchelder r. Currier, 45 N. H., 4GO. People r. Granioe, 50 Cal., 447. s 38 S. W. Rep., 179. * Heilbrou v. Campbell, 23 Pac. Rep., U3. s P, 402. 6 23 Tex., 583. S. 249.] WAIVER OP DISQUALIFICATION OF A JUDGE. 4,3]. public policy that the prohibition was designed, tl not merely for the protection of the party to the suit, but for the general interest of justice.'' The decision in Oakley v. Azpinwall 7 is a particularly strong authority against the validating effect of consent in such a case. The Court which heard the appeal consisted of eight judges, only one of whom was said to be disqualified, the disqualification being that he was a second cousin, relat- ed in the sixth degree to the defendants, who were sued mere- ly as sureties and having been fully indemnified, had no per- sonal interest in the suit. Counsel on both sides united in requesting the judge to sit before he would do so. Bron- son, C. J., maintained that there was no question of jurisdiction involved, as the disqualification of one of the judges could not affect the jurisdiction of the entire court, that jurisdiction over a person may be and often is acquired by consent, and that in this case consent would operate as an estoppel, no party being " at liberty first to invite a judge to sit and after taking the chances of having an opinion in his favor, turn round, when he found the opinion to be the other way, and repudiate his own act," and that it would be the same if the request to sit were made by counsel, as a " party is concluded by the acts of his counsel." Jewett and Harris, J.J., agreed with the Chief Justice, but the contrary was held by four judges of the Court. Hnrlbut, J., who delivered the leading opinion, based it on the ground that the prohibition of law " was not designed merely for the protection of the party to a suit, but for the general inter- est of justice." He said : " It is the design of the law to main- tain the purity and impartiality of the courts, and to insure for their decisions the respect and confidence of the com- munity. Their judgments become precedents which control the determination of subsequent cases ; and it is important, in that respect, that their decisions should be free from all bias. After securing wisdom and impartiality in their judgments, it is of great importance that the courts should be free from reproach or the suspicion of unfairness. The party may be interested only that his particular suit should be justly determined ; but the State, the community is concerned not only for that, but that the judiciary shall enjoy an elevated rank in the estimation of man- kind. The parcy who desired it might be permitted to take the hazard of a biased decision, if he alone were to suffer for his folly, 7 3 X, Y , 047. 61 482 WAIVER OF DISQUALIFICATION OF A JUDGE. [g. 249 but the State cannot endure the scandal and reproach which would be visited upon its judiciary in consequence. Although the party consent, he will invariably murmur if he do not gain his cause; and the very man who induced the judge to act, when he should have forborne, will be the first to arraign his decision as biased and unjust. If we needed an illustration of this, the attitude which the counsel for the moving party in this case assumed toward the court, the strain of argument which he addressed to it, and the impression which it was calculated to make upon an audience, are enough to show, that whatever a party may consent to do, the State cannot afford to yield up its judiciary to such attack and criticism as will inevitably follow upon their decisions made in disregard of the prohibitions of the law under consideration." It may, however, be observed that in this case the prohibitory statute was very broad, and provided that, " no judge of any court can sit as such in any cause to which he is a party or in which he is interested, or in which he would be disqualified from being a juror by reason of consanguinity or affinity to either of the parties. " So that the question was not of jurisdiction ; but even the sitting of the judge was barred, the exclusion wrought by the statute being as complete, as is in the nature of the case possible. The rule is applicable with still greater force to proceedings in renij in which the decision must affect not only the parties before the judge, but all" those having any interest in matters forming the subject of the proceedings. Thus in Sigourney v. Sibleyf Shaw, C. J., in delivering the opinion of the Court said : " It is a general rule, that want of jurisdiction, especially of a court of limited and special juris- diction, cannot be aided by any waiver of exceptions or even by express consent. If this is true in ordinary cases, it is so, a fortiori, in a case of a probate decree, granting administration, which binds not only all those who happen to be before the court as litigant parties, but all those, who as creditors, heirs, or otherwise, may be interested, directly or remotely, in the settle- ment of the estate." No such absolute disqualification affecting- jurisdiction will be interred, however, where a statute only pro- vides for its exercise by a justice " who shall not be interested in the m-itter." In Wakejleld Local, Board of Health v. West Ry. Co., 9 it was held that in such a case, tho words III Pick., 101. L. U , 1 O. 1!.. ?1. S. 25O.] WAIVER OF DEFECT OF JURISDICTION BY APPEARANCE. 433 would be merely declaratory of the common law, and, therefore, a waiver by the parties might be held valid, and they not able to object to the jurisdiction after waiving it once. In Baldwin v. Calkins 10 also, the statute required that the ap- plication should be to disinterested judges, and the proceedings did not show that the judges were disinterested, and yet they were held valid on the ground of waiver, as no objection had been made to the judges on the ground of interest, Savage, C. J., observing, that " consent cannot give jurisdiction, but cures irregularity . . . the parties appeared and made no objec- tion ; this was an admission of the competency of the judges." When the law only gives a party the right of having certain proceedings transferred from the court of any judge, there shall, however, be no disqualification or divesting of his jurisdiction till the transfer has been made. 11 Waiver of defect of personal jurisdiction by appearance. 250. It is a general principle, that the defect of personal juris- diction may be waived by appearance. 13 Thus in Forbes v. Smith, 1 * a British subject residing abroad was served with a writ endorsed with a claim in respect of promissory notes executed abroad ; the defendant appeared ; and it was held that the appearance waived the irregularity in the service. Martin, B., in his judgment, said : " I think, that, even if a foreigner came before the Court and stated, that being in ignorance what course" to pursue, he appeared, the Court would, except under very peculiar circumstances, deal with him as with any other person, and refuse his application to set aside the appearance." This case was cited with approval in OulPon v. R&ddifft** in which the writ was duly issued, and the defendant (through his attorney) having heard that a writ had issued, said to the plaintiff's attorney, " you need not take the trouble to serve me : I will appear": and he did enter an appearance. Brett, J., said: "It is true that a party residing out of the juris- diction cannot be compelled to come before the Court without service of the writ, or that which amounts to service: that 1 10 Wend., 167. 11 Vide S. 191, Act X of 1S82. 12 Mostyn v. Fabrigas, Cowp., 72. Barrington r. ^ennables, L. Rnyin., 34. Trelaway r. Williams, 2 Vern.. 484. 10 Exch.. Hep., 717. 9 C. & P., 189. 4R4 WAIVER OF DEFECT OF JURISDICTION BY APPEARANCE. [S. 250. would be contrary to natural justice. But, however irregular a writ may be, no objection can be taken to it on that ground after the defendant has chosen to appear to it." Denraan, J., observed that "if the defendant appears, that gives the Court jurisdiction to proceed, provided the subject-matter of the action is one over which the Court has jurisdiction." Honyman, J., said : "If the defendant choses to waive it, or to accept service out of the jurisdiction, and appears to the writ, I am at a loss to see what irregularity there can be in the sub- sequent proceedings." This question has often arisen in India also, generally in suits on foreign decrees. The Madras High Court has re- peatedly laid down that an appearance to defend a suit in a court is a bar to an objection against the jurisdiction of that court. Thus in Kandoth Mammi v. NeelnncJisrayii^ Morgan C. J., and Holloway, J., thought that justice required them " to hold that a man who has thus taken the chances of a judgment in his favor which would, if obtained, have relieved him from all liability is equitably estopped from afterwards set- ting up the objection.'' In Fazalshau Khan v. Gafar Khan 16 the defendant in the Bastar Court had not protested against the jurisdiction of that Court, but appeared and defended the suit by an agent, and the Madras High Court held that " hav- ing done so, and having taken the chance of a judgment in his favor, he cannot now, when an action is brought against him on the judgment, take exception to the jurisdiction." An appearance by an umnstructed solicitor, however, is not such an appearance as will effect a waiver. 17 The principle is recognized in the United States also. There also it is held that the defect of personal jurisdiction may be waived by a general appearance or by some act equivalent to it, such as the filing of a pleading in the case, or some similar act recognizing the authority of the court to proceed in the action. 18 Thus in Smith v. Elder, 1J Vanness, J., observed that "the defendant has submitted to the jurisdiction of this court, and by pleading a plea in bar, has, in fact, affirmed it, and is, therefore, now precluded from making the objection." i- VIII M. H. C. R., l-l. 16 I. L. B,., XV Mad., 82. 17 Sivaraman Chetty v. Iburam Saheb, I. L. R., XVIII Mad., 327. 13 Wasson- v. Cone, 86 III., 4G. Fee v. Big Sand Iron Co.. 13 Ohio, 563. Aurora Fire Ass. Co. ? Johnson, 46 In'}.. 315. Slanter v. Hallowell, 90 Ind., 28G. Damp r. Town of Dane, 29 Wis., 419. Carpenter r. Shepardson, 43 Wis., 40ii. Smith r. Curtis, 7 Cal., 584. Roy v. Union Merc. Co., 26 Pac. Rep. 996. Young r.-Koss., 31 N. H.. 205. 1 9 Johu.s., 105. S. 250. ] WAIVER OF DEFECT OF JURISDICTION BY APPEARANCE. In Jones v. Jones," Andrews, J,, in delivering the opinion of the court observed, that " jurisdiction of the person may be acquired by consent, although not of subject-matter ; and it is well settled that a general appearance of a defendant in an action is equivalent to personal service of process." In German Bank v. Am. Fire Ins. Co ^ the action of the defendant Bank in appearing was regarded as voluntary, and, therefore, as a waiver of its right to object to the jurisdiction of the court. In Mays v. Fritton,- 2 Hunt, J., in delivering the opinion of the United States Supreme Court, said : " It is not competent to a party to assent to a proceeding in the court below, take his chances of success, and upon failure, come here and object that the court below had no authority to take the proceeding." In Scott v. Kelly ^ the assignees in bankruptcy voluntarily submitted themselves and their rights to the jurisdiction of the State Court. Being summoned, they appeared without objection, and presented their claim for adjudication by that court ; and it was held that after that an objection to the jurisdiction would not be entertained. And if a court has lost jurisdiction of the person, it may also be restored in the same manner by personal appearance. 24 The rule applies even to corporations. Thus in McCormick v. Pennsylvania Central Railroad Co., 25 Folger, J., said: " It has been often held that a voluntary appearance confers jurisdiction of the person, and the rule seems so reasonable in itself that we have no hesitation in adopting it." In Faulkner v. Del. $ Rar. Can. Co., 2 Beardsley, J., after quoting Taney, C. J., to the effect that a corporation, though it must live and have its being in the State of its creation, yet it may be recognized and contract in another, said: " Hence it may prosecute and defend suits out of the State in which it was created." But, unless it is expressly provided to the contrary, as it is in some of the States, a special appearance may be entered for the purpose of questioning whether the court has acquired jurisdiction, by the service of process, as required by law, without giving the court jurisdiction to proceed further than to determine whether it has acquired jurisdiction or 20 108 N. Y., 425. 21 83 Iowa, 49 L. a 20 Wall., 414. 23 22 Wall., 57. 2* Taylor r. Atlantic & Pao. E, Co. 68 Mo., 397. 28 49 N. Y., 309. 30 1 Den., 441. 436 PLEADING AFTER OBJECTION NOT WAIVER. [S. 251. not. 27 Thus, if the defendant appears merely for tlie purpose of contesting jurisdiction, it will not estop him from con- testing it. 251. If a party object, however, to the jurisdiction, no consent or waiver on his part will be Pleading after objec- presume a if after the objection has been tion to jurisdiction not 111 , a waiver of its absence. overruled, he continues to appear, and even acts or pleads up to the end of the proceedings. He is not bound to retire from the case as soon as the court decides in favor of its jurisdiction, on pain of being deemed to be a consenting party to its exercise. In Hamlyn v. Betteley?* it was protested on behalf of the defendant that the issue which had arisen in the proceedings could not be tried by the judge without the jury. The objection was overruled, and the defendant's counsel did not withdraw or offer to withdraw from the conduct of the case. On appeal from the final order, the court held that there was no waiver of jurisdic- tion. Lord Selborne, with whom Lord Coleridge, C. J., and Brett, L. J., concurred, observed that the amount of protest made in the case was quite sufficient, and that " even in arbi- trations, where a protest is made against jurisdiction, the party protesting is not bound to retire; he may go through the whole case, subject to the protest he has made." This is the view repeatedly taken by the United States Supreme Court also. Thus in llarkness v. Hyds, 30 Field, J., in delivering the opinion of the Court said: " The right of the defendant to insist upon the objection to the illegality of the service was not waived by the special appearance of counsel for him to move the dismissal of the action on that ground or what we consider as intended, that the service be set aside ; nor, when that motion w r as overruled, by their answering for him to the merits of the action. Illegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the Court to such irre- gularity ; nor is the objection waived when, being urged, it is 27 Green r. Green, 42 Kan., 554. Alderson r. White, 32 Wis , 308. Nelson v.Campbell,! Wash. St. ,261. Branner r. Chapman, 11 Kan., 118. Jsew Albany R. 11. Co. r. Combs, l:j liid., 490. Linden Grand M. Co. ''. Shoplar, 53 Cal.. i'4,">. Southern Pac. R. R. Co. r. Snpeiior Court Kern Co., 53 Cal., 471. 28 Walling v. Beors, 120 Mass., 540. W right r. Andrews. 130 Mass., 149. 2 9 (5 Q. B. D., . Ilahi Bakhsh. 1. L. K., IV All., 47d. 43 Township of Cer.tcr r. Coun'y Marion, 110 Ind., 579. 40 VUI C. L. R., 201. 492 WAIVER. OF IRREGULARITY OF FIRST INSTITUTION. [8. 253. there was no jurisdiction on the part of the court which effected the sale, but that the preliminary proceedings by which the decree had beei brought to that court were not strictly regular. The decision in Ledgard v. Bull, 5 as to the proceedings in that case in the District Judge's Court being void is not against this view, as it proceeded only on the ground that the application for the transfer of the suit to that court from the court of the Subordinate Judge did not in the particular circumstances of the case constitute a waiver of the irregularity of its institution iu the Subordinate Judge's Court. On the other hand, that decision clearly supports the view here advanced, as Lord Watson in delivering it expressly observed, that " there are numerous authorities which establish that when, in a cause which the judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irre- gularities in the initial procedure which, if objected to at the time, would have led to the dismissal of the suit." In the United States also, it is generall} 7 considered, that an appearance in the court to which the proceedings are transferred will be deemed a waiver of the irregularity in the application for transfer, and of any other defects in the proceedings taken to procure the same. 1 The same principle will apply also, when the proceedings go before a court of competent jurisdiction not by transfer, but on an appeal from a decision passed by a court not having- juris- diction. Thus on an appeal from a judgment passed by a court not having jurisdiction, the Appellate Court, if it should have original jurisdiction also over the subject-matter of the suit, would, if the parties consented, be able finally to dispose of the same. 2 In such a case it would not obtain jurisdiction by virtue of the appeali from a court not having jurisdiction ; but on account of the consent of the parties, the suit might be treated as if it had been originally commenced in that court, and the parties voluntarily appeared in the proceedings and gone to trial. 3 It will be different, however, if the Appel- late Court has no original jurisdiction. This was the case in Velayudam v. Arunachala* in which a suit for less than Rs. 2,500 was 61ed in the court of a Subordinate Judge, who had 60 L. R. XIII I. A., H4. 1 Aurora F. I u s. Co. r. Johuson, 10 Ind., 315. Randolph County v. Rails, 18 111., 29. Harinsjlon ?>. Heath, 15 Ohio, 483. I. L. R., XIII Mad .273. S. 253.] WAIVER OP IRREGULARITY OF FIRST INSTITUTION. 493 jurisdiction to hear suits only for more than that amount. No objection to the jurisdiction was taken in the original or the lower A pel late Court, but still it was allowed on second appeal in the High Court, which said: "An appeal could not be heard on the merits, unless the decree from which the appeal was preferred was passed by a Judge having jurisdiction over the matter in dispute. No doubt the District Judge was the appellate authority, whether the suit was heard and determined either by the Subordinate Judge or District Munsiff, but it must be remembered that the Appellate Court, is only a Court of error, and the trial by the Appellate Court cannot be accepted in place of a trial by the Court of First Instance." For the purposes of this rule, a court having extraordinary jurisdiction will apparently be deemed as having jurisdiction. Thus in Vishnu Sakharam v. Krishna Rao, 5 a. decree had been passed against a Sirdar under the exclusive jurisdiction of the Agent for the Sirdars, and on the Sirdar's death execution- proceedings against his heirs were carried on in the court of a Subordinate Judge for years under the orders of the High Court to which the proceedings had gone up twice on appeal. At a later period, it was held in another case that a decree of the A>>ent could not be executed by mere transfer to an ordinary court, but that the remedy in such a court was by a suit on the decree. Thereon the Subordinate Judge refused to recognize the transfer of the decree, and put a stop to the execution- proceedings. West, J., in delivering the judgment of a Division Bench of the Bombay High Court, said : " Where jurisdiction over the subject-matter exists, requiring only to be invoked in the right way, the party who has invited or allowed the Court to exercise it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings due to his own invitation or negligence. The Subordinate Judge has for many years been carrying on the execution under an order of the High Court which he was bound to obey. The High Court had jurisdiction over the matter in every aspect of it, and the sons of the judgment-debtor contested in the High Court the right of the judgment-creditor as against them on exactly the same grounds as they could have taken if they had been sued on die decree. They did not contend that their liability could be enforced only by a fresh suit in the Subordinate Judge's Court ; and having chosen their ground, and taken their chance of vic- tory in the execution-proceedings, they could not, and indeed 8 I. L. R., XI Bom., 153. 494 WAIVER OF IRREGULARITY OF INITIATIVE PEOcESS. [S. 254. did not, ask to fight the battle over again. Had there indeed been no jurisdiction over the subject-matter, the acquiescence of the parties concerned could not create it ; but as there was a jurisdictional power, and the questions at issue were investi- gated and determined, the irregularity was covered by the assent with which this Court acted." 254. As a general rule, criminal proceedings may be com- menced by a complaint and an exami- . Waiver of irregularity of nationon oatn after which process initiative process in crimi- , -. . . , , L , ual proceedings. 1S issued, it there appear to be a sufficient ground for proceeding. It appears to be established, 6 however, that any irregularity in the complaint, process or its service does not affect the jurisdiction of the court in criminal cases, and may be waived. It is said to be quite an old rule, that if one who may insist on faults of procedure, waives them, submits to the judge, and takes his trial, it is afterwards too late for him to question the jurisdic- tion which he might have questioned at the time. 7 Thus it has been repeatedly held that to found jurisdiction to take cog- nizance of an offence, a written information or process is not necessary, 8 and an information instanter is sufficient. 9 A flood of authorities may be cited in support of the proposition that no process at all is necessary, when the accused being bodily before a magistrate, the charge is made in his presence, 10 and he appears and answers to it. In Turner v. Postmaster-General, 11 the conviction was under 24 & 25 Viet , C. 97, S. 62 of which required the information to be on oath, and it was held that though there was no information on oath, yet after appear- ance without making any objection, no objection could be taken to the jurisdiction of the justices to convict summarily, and that any defect in bringing the party before the justices was cured by appearance, and by the merits of the case being gone into, and that the justices had jurisdiction. In England the question has risen generally under Jervis's Act, 12 the first section of which provides that in all cases where an information shall be laid before one or more justices of the peace that any person has committed, or is suspected to have committed, any offence or act within the jurisdiction of 6 S.204, AotX of]88\ 7 Queen r. Uu^hes, 4 Q. B. D., 614. 8 Rex v. Thompson, 2 T. R., 18. Eog. i-. Millar.1, 22 L. J. M. C., 108. 11 & 13 Viet. C., 43. 9 Rex u. Heber, 2 Barn.', 101. 10 2 Hawk. P. C., 28. Res v. Stone, 1 East P. C., G4D. 11 10 Cox C. C . 15. S. 254] WAIVER OF IRREGULARITY OF INITIATIVE PROCESS. 495 such justice or justices, and also in all cases where a complaint shall be made to any such justice or justices upon which he or the} 7 shall have authority by law to make any order for the payment of money or otherwise, it shall be lawful for such justice or justices to issue his or their summons directed to such person, requiring him to appear before a justice or justices to answer thereto. In Reg. v. Shaw, 13 the summons was filled up by the magistrate's clerk, and handed to a superintendent of police, who took it to a magistrate, who read and signed it, without making any inquiry, or requiring any statement of facts. The accused appeared before the justices and answered to the charge ; and the conviction for giving false evi- dence of a person who gave evidence during the proceedings was sustained. Erie, G. J., observed, that '' if a party is before a magistrate and he is, then charged with the commission of an offence within the jurisdiction of that magistrate, the latter has jurisdiction to proceed with that charge without any information or summons having been previously issued, unless the statute creating the offence, imposes the necessity of taking some such step." Blackburn, J., similarly observed that "when a man appears before justices, and a charge is then made against him, if he has not been summoned, he has a good ground for asking for an adjournment ; if he waives that, and answers the charge, a conviction would be perfectly good against him." In The Queen v. Hughes the facts were much the same. There was no written informa- tion nor oath, Hughes having merely got a form of a warrant from a clerk to the justices, telling him that he wanted a warrant against Stanley for assaulting and obstructing him in the discharge of his duty. Hughes took the form to a magis- trate, who signed it, and Stanley was arrested in execution of it, but raised no objection, and during the trial Hughes gave false evidence, for which he was convicted ; and on a case reserved, the conviction Avas sustained. Hawkins, J., delivered the leading decision (with which Pollock, B., and Lindley, J., concurred) and observed, that *' it is altogether immaterial, so far as the jurisdiction of the justices to hear that charge is concerned, whether the accused was before them voluntarily or otherwise ; or on legal or illegal process." Lopes, J., observed that the warrant was mere process for the purpose of bringing the party complained of before the justices, and had nothing whatever to do with the jurisdicion of the justices ; 13 10 Cox C. C., 66 . I i* 4 Q. B. D., 611. 496 WAIVER OF IRREGULARITY OF INITIATIVE PROCESS, [s. 251. and that whether Stanley was summoned, brought by warrant, came voluntarily, was brought by force, or under an illegal warrant, was immaterial : being before the justices, however brought there, the justices, if they had jurisdiction, in respect of time and place over the offence, were competent to entertain the charge, and being so competent, a false oath, wilfully taken, in respect of something material would be perjury. Huddleston, B., said: 4< The information on oath is not necessary to give the justices jurisdiction to try, though it is necessary to give them jurisdiction to issue a warrant to apprehend. The jurisdiction to try arises on the appearance of the party charged, the nature of the charges, and the charging of the defendant. , Principle and the authorities .seem to shew that objections and defects in the form of procuring the appearance of a party charged will be cured by appearance. The principle is, that a party charged should have an opportu- nity of knowing the charge against him, and be fully heard, before being condemned. If he has the opportunity, the method by which he is brought before the justice cannot take away the jurisdiction to hear and determine, when he is before them. The arrest of Stanley was no doubt illegal, there had been no information on oath to justify the warrant ; and it might be, that if the objection had been taken the magistrates might have entertained it, but they could then and there have issued their summons for Stanley's apprehension at once on a verbal informa- tion, which would be good ; and have proceeded to hear and determine, though if the defendant objected, they ought to adjourn, so that he might know the charge and be prepared to meet it." In both the above cases, there was no protest against the jurisdiction on account of the informality, which, being only a fault of procedure, was considered waived. In Dixon v. Wells, 1 * the accused on being brought before the Magistrate objected that there was no summons and 110 information, that the whole proceeding was irregular, and that the court had no jurisdiction to try him because he was not properly brought there. Lord Coleridge, C. J., said: " Although the fact of bis protest ought to be a complete answer to the assumed jurisdiction, I cannot disguise from myself the fact that from the language of many of- the judges in Reg. v. Huyhes, and the judgments of Erie, C. J., and Blackburn, J., in Reg. v. Shaw, they seem to assume that if the two conditions precedent of the presence of the accused 5 2r Q. B. D., 249. S. 25-4.] WAIVER OF IRREGULARITY OP INITIATIVE PROCESS. 497 and jurisdiction over the offence were fulfilled, his protest would be of no avail. It would have been easy to say that a protest would have made a difference, but I find no such qualification." The proceedings were, however, held to be without jurisdiction, as they were under the statutes 42 and 43 Viet. c. 30, section 10 of which enacts that " the summons to appear before the magistrate shall be served upon the person charged with violating the provisions of the said Act within a reasonable time, and in the case of a perishable article not exceeding twenty-eight days from the time of the purchase from such person for test purposes of ihe food or drug, for the sale of which in contravention to the terms of the principal Act, the seller is rendered liable to prosecution, and parti- culars of the offence or offences against the Act of which the seller is accused, and also the name of the prosecutor, shall be stated on the summons, and the summons shall not be made returnable in a less time than seven days from the day it is served upon the person summoned." Lord Coleridge observed that the provision as to time was of the essence of the juris- diction to try the offence, and said : "It is possible to say that it can be treated like the other section as mere procedure, and that as the defendant was present, the magistrate had jurisdiction to try the charge. But it seems to me that in. this case the legislature has made it a condition precedent to the magistrate's jurisdiction that the proceedings should be brought within the operation of S. 10, and that in all prosecu- tions under the Act certain things shall be done and certain, things shall not be done. The section is not only directory but strongly imperative. In the present case there was, in my opinion, no summons. I think that, according to S. 10, which applies to this case, it was essential to the jurisdiction that it should be exercised in twenty -eight days, and that it was not so exercised, and the appellant is entitled to our judgment." It will of course be different if the proceedings are under any particular statute making certain information a, condition precedent to the proceedings, as for example in the case of Reg. v. Scotton in which, by the words of the statute 6 & 7 Wm. 4, c. 65, s. 9, it was a condition precedent to any further step that the matter of the information should be deposed to on the oath of the informer, or some other credible witness, and information was the only possible basis of the magistrate's jurisdiction. is 5 Ad. & El., N. S., 4f conditions precedent does not arise there often from the point of view of practice. It is generally held that if a statement of claim does not allege their performance, it will he bad, and deemed even to fail to show a cause of action; 25 hut there is not much authority as to the effect of the non-performance on the jurisdiction of the court. It is only in cases in which leave has to be obtained for the institution of a suit in a certain court, that it has been held that the defect of leave does not affect the jurisdiction of that court over the suit, and may be waived. 20 Mr. Vanfleet, in his work on the Law of Collateral Attack on Judicial Proceedings a7 ohserves that it is difficult to see how jurisdiction is touched by such defects or omissions. In State v. Lancaster County Bank** it was held that in the ab- sence of such an averment in the complaint, the Attorney- general's consent to the judgment would not render it valid. The weight of authority appears, however, to be in favor of the view that the non-averment of the performance of the conditions may be waived. In California, for instance, the non-presentation of the claim to the administration is a matter in abatement, hut the Supreme Court there has repeatedly held that the ad vantage of the plea must be taken in the trial court, and that the plea will he too late on appeal. 29 Mr. Truman Waldron, in his Article on Conditions Precedent in the Encyclopedia of Pleading and Practice, 30 observes that if the performance of the condition precedent is essential to the right of action, an omission to allege performance is a defect which can he taken advantage of at any stage of the action, unless it is waived ; thus implying clearly that there may be a waiver of it. The cases in which the contrary has generally been held are either proceedings in rem, which are really against the world, as Graham v. Scripture, 29 How. Pr., 1 as 8 Neb., 218. (N. Y. Sup. Ct.), 50, ao Smith . Compton, 6 Cal., 24. . lure Jonesv.James, 10 L. J. (Q. B.), I Hentsch r. Porter, 10 Cal., 555. Coleman r. W'xxlworth, 28 Cal., 568. Stockton Bank v. Howlamd, 42 Cal 257. Moore T. Gamjee, 25 Q. B. D., 244. ' P. 225. 129. IV. 660. 502 WAIVER OF CONDITIONS OP EXERCISE OF JURISDICTION. [S. 255. and in wliich, therefore, waiver or consent by any particular persons can receive no effect ; or those in which the precedent condition is not merely of a supplemental character as it is in India, but the very basis of the commencement of proceed- ings. Even in India, Farran, C. J., in delivering the judg- ment of the court in Ishwardas Tribhovan Das v. Kalidas Bhatdas,* 1 observed that " Section 69 of the Presidency Small Cause Courts Act 33 makes it a condition precedent to the drawing up of a statement of the facts of the case bv the Small Cause Court, and referring it for the opinion ot the High Court, that a question of law or usage having the force of law or as to the construction of a document which may affect the merits, arises in the case;" and "if upon the findings of the judge no such question arises, the Small Cause Court has no authority to refer the case for the opinion of the Hii>h Court, and the High Court has no jurisdiction to deal with it." It is evidently with reference to such conditions, that Mr. Works, in his work on the Jurisdiction of Courts, 33 observes that " where certain steps are required to be taken, as the foundation of the proceeding, as, for example, the filing of a petition containing certain facts, or signed by certain persons, the giving of bond, or the like, such steps are jurisdictional, and must be taken, or the proceeding will be void ; " and being jurisdictional, they cannot be supplied by waiver or consent. M He, however, immediately proceeds to qualify that general statement, and adds : ' But the rule that defects cannot ^be supplied by consent, or the party bd estopped by a failure to make the necessary objections at the proper time, is only applicable to matters affecting the public or jurisdiction of the subject-matter. A party to the action may waive personal notice upon himself in the matter of a special statutory proceeding, or in a court having only a limited or special jurisdiction, as well as in any other. But where some proceeding is required affecting the public, for example* where notice, not to any individual, but to all persons, is required, no one person or any number of person?, can give jurisdiction to the court or other tribunal by consenting that such proceeding may be omitted, or by an appearance or other act of submission to the authority of such tribunal/' In illustration of this difference, reference may be made to the proceedings in garnishment in Steen v. Norton, 35 which, as si I. L. E., XX Bom,, 763. | 3 * RuhUnd r. Superyisors. 55 Wis., 82 XV of 1882. 568, Steen . Norton, 45 Wi^., 4,12. as p. 89. 3 5 45 Wis., 412. S. 255.] WAIVER OF COKD1TIOKS OP EXERCISE OF JURISDICTION. distinguished from an ordinary suit against the debtor or the debtor's debtor, can only be commenced by an affidavit, and in which the affidavit is the foundation, an essential condition, of the jurisdiction. Bell, J., in delivering the opinion of the Court, said : " Failure of the affidavit is therefore failure of juris- diction over the subject-matter. The justice's jurisdiction of the proceeding is conditional, not absolute-, and remains dormant until the affidavit supplies the condition. Without the affidavit, the proceeding could be no more than a personal action of the plaintiff, in his own right, against the garnishee It is quite certain that the officer takes no authority to summon the garnishee, without the statutory affidavit. And his summons without the affidavit cannot operate to fix the garnishee's liability to the plaintiff. In that case, the garnishee may dis- charge his liability to his own creditor. And the assumption of jurisdiction by the justice, or the submission of the garnishee to his jurisdiction, cannot cure want or material defect of the affidavit, or absolve the garnishee from liability to his own creditor, or fix his liability to his creditor's creditor, which the statute determines and makes wholly dependent upon service of the summons, founded on the statutory affidavit. All the subsequent proceedings of garnishment rest upon the liability of tbe garnishee to the plaintiff, the change of his creditors, the substitution of a stranger for his own creditor, by operation of law, upon the service of the summons which the officer takes authority to issue and serve by force of the statutory affidavit only ; mere waste paper in the absence of the proper affidavit. Without the affidavit, the officer is not acting within the scope of his office in summoning the gar- nisbee. And, when he makes his return, the jurisdiction of the justice of the proceeding of garnishment rests wholly upon the effect of the statutory affidavit and summons, in subrogat- ing so to speak the plaintiff for the garnisbee's creditor; in other words, upon the sufficiency of the affidavit to charge the garnishee with liability to the plaintiff. If that be material- ly defective, the justice's want of jurisdiction over the subject- matter is apparent on the face of the affidavit. And the affidavit, taken as a complaint, discloses no cause of action against the garnishee, no ground of jurisdiction of the proceed- ing; being defective in a material averment, not cured by verdict or judgment. Even in courts of justices of the peace, voluntary appearance and submission, without objection, under void process, will cure the justice's defect of jurisdiction oyer the person of the defendant; but it can go no further. It 504 WAIVER OF CONDITIONS OP EXERCISE OF JURISDICTION. [S. 266. cannot operate to give the justice jurisdiction of a proceeding which he could not take without such appearance and submission. His jurisdiction of the subject-matter must come by statute ; and if tlie statute makes his jurisdiction of the subject-matter dependent on preliminaries or conditions precedent, the justice can take jurisdiction only by force of the statutory preliminaries or conditions precedent. This is well exemplified by the writ of attachment, as mesne process. If the affidavit on which the attachment issues be materially defective, the defendant is entitled to have the action com- menced by it dismissed in toto. But, if the defendant appear and submit without objection, he cures the defect of the process as a personal summons, but not as an attachment of property. The justice takes jurisdiction to render personal judgment against him, but not against the property attached." 256. In criminal proceedings, conditions precedent are gene- rally held to affect jurisdiction. Thus in Waiver of conditions England, the Summary Jurisdiction Act of exercise or criminal , , . , ,, i / j i jurisdiction taken with the rules framed under it provides that when an order is made by the Justices, a case will be stated for the hearing of the Queen's Bench Division, if an application in writing is made to them by the party dissatisfied with the order, and it has been held that a case stated on an oral application will not give jurisdic- tion to the court to hear the case. 38 In the case first cited, after the oral application, an application in writing also addressed to the justices was served on their clerk but not brought to their notice, and it was held that the O / court had no jurisdiction to hear the appeal. Lord Esher, who delivered the leading decision, observed that " there are a series of decisions beginning with Morgan v. Edwards,* 1 which appear to be to the effect that, where a statute made with regard to a precisely similar subject-matter contain- ed a similar direction to that contained in this rule, such direction was not directory only, but compliance therewith was a condition precedent to the jurisdiction to entertain the appeal." In the case last cited, the judges expressed their consent to state the case on an oral application, and sub- sequently a written application was made, but only to two of the Justices. Before the court, both the parties wished the 86 Lockhart v. Major of St. Albans, I Westmore r. Paine, (1891) 1 Q. B., 21 Q. 13. D., 188. 482, 3* 5 H. & N., 415. 8. 256.] WAIVER OF CONDITIONS OF EXERCISE OF JURISDICTION. t (35 case to be argued, but the court held that it had no power to hear the case, and that the statutory requirements as to proceeding by case stated were conditions precedent of the right of appeal, and could not be waived by the parties or justices." A good illustration of the principle is furnished by the decision in Thorpe v. Priesthall, 33 in which information was laid of an offence under the Sunday Observance Prosecution Act, 1871, which provides that no prosecution shall be instituted for any offence under that Act, . . . except by or- with the consent in writing of the chief officer of police of the police district in which the offence is committed. The chief constable had given his verbal consent before the information was laid, but the written consent, though dated the same day, was not signed till the morning: of the next day, and the conviction was quashed on the ground that there was no sufficient consent. In India the question arises generally in cases in which the previous sanction of a court or other officer is required for the initiation of proceedings in certain cases. There are several provisions in the Criminal Procedure Code and several special Acts, in which the sanction of the Government or other officer has been laid down as necessary. Thus S. 132 of the Code lays down that no prosecution against any magistrate, military officer, police officer, soldier or volunteer for any act purporting to be done under chapter IX of the Code shall be instituted in any criminal court, except with the sanction of the Governor- General in Council. Similarly no prosecution of any offence punishable under the Indian Stamp Act can be instituted with- out the sanction of the Collector or such other officer as the Local Government generally, or the Collector specially, authorises in that behalf. 40 The most general provisions of this sort are those contained in SS. 1-95, 196 and 197 of the Criminal Pro- cedure Code. Thus S. 195 of the Code provides that ''no court shall take cognizance (a) of any offence punishable under SS. 172 to 188 (both inclusive) of the Indian Penal Code, except with the previous sanction, or on the complaint, of the public servant concerned, or of some public servant to whom he is subordinate ; (b) of any offence punishable under SS. 193, 194, 195, 196, 199, 200, 205, 206, 207, 208; 209, 210, 211, or 223 of the same Code, when s-ich offence. (1807) 1 Q. "P., 1:9. [ 3 34 & 33 Viet., -. S7, S. 1. * S. 09, Act I of 1^'y, 64 506 WAIVER OF CONDITIONS OF EXEECISE OF JURISDICTION. [S. 256. is committed in, or in relation to, any proceeding' in any court except with the previous sanction, or on the complaint, of such court, or of some other court to which such court is subordinate ; (c) of any offence described in S. 463, or punishable under SS. 471, 475 or 476 of the same Code, when such offence has been committed by a party to any proceeding in any court in respect of a document given in evidence in such proceeding, except with the previous sanction, or on the complaint, of such court, or of some other court to which such court is subordinate." The failure to obtain this sanction does not affect the validity of the .proceedings, but only in certain cases and. undtr a special provision of the Code, 41 which provides that no finding, sentence or order passed by a court of com- petent jurisdiction shall be reversed or altered on reference for confirmation, or on appeal or revision, on account of the \vant of any sanction required by S. 195, unless such want has occasioned a failure of justice. A sanction is required in some other cases also. Thus S. 196 of the Criminal Procedure Code provides that no court shall take cognizance of any offence punishable under chapter VI of the Indian Penal Code, except S. 127, or punishable under section 94A of the same Code, unless upon complaint made by order of, or under authority from, the Governor-General in Council, the Local Government, or some officer empowered by the Governor-General in Council in this behalf. Similarly S. 197 of the Procedure Code provides that when any judge, or any public servant not removable from his office without the sanction of the Government of India or the Local Government, is accused as such judge or public servant of any offence, no court shall take cognizance of such offence, except with the previous sanction of the Government having power to order his removal, or of some officer empowered in this behalf by such Government, or of some court or other authority to which such judge or public servant is subordinate, and whose power to give such sanction has not been limited by such Government. There is no express provision in the Code as to the effect of the want of sanction in these cases; and from the special provision in regard to the sanction required under S. 195, the presumption is that in cases in which the sanction is required under section 196 or 197 ot the Code, the want of sanction will be fatal to the proceedings. *' S. 537, AotXof 1882. S. 256.] WAIVER OF CONDITIONS OP EXERCISE OF JURISDICTION. 5Q7 This has been the view taken by the High Court of Bombay. In Reg. v. Parskram^ Melvill, J., in delivering the decision of a Division Bench of that court, observed that " until the sanction is obtained the Magistrate has no jurisdiction, and a con- viction founded on evidence taken without jurisdiction would be bad." He distinguished the case from that of Reg. v. Jivan Vasudev, in which the court had held that the trial might be proceeded with, though the sanction to the prosecution had not been given until after the committal of the accused, on the ground that the prosecution had been duly authorised before the trial commenced, and the irregularity of the preliminary enquiry did not prevent the Court of Session from trying the case. The same was held by a full Bench of the Court in Queen Empress v. Morton,* 3 in which the magisterial enquiry was held without the necessary sanction which was obtained about two months after its termination, and Sargent, C. J., who delivered the leading decision, observed that " the language of S. J97 of the Criminal Procedure Code (X of 1882) is so strong in requiring a previous sanction that, in my opinion, if no such sanction has been obtained there is no jurisdiction ; and I think Colonel Dobbs had no jurisdiction to commit this case." Bayley, J,, also expressed it as his opinion, that " all the proceedings were illegal and without jurisdiction," and " a sanction subsequently obtained cannot ratify illegal pro- ceedings." The committal was not quashed, however, simply as under S. 532 of the Procedure Code, the court was competent to act on an irregular commitment. The Madras High Court has taken the same view of the necessity of the sanction in such cases, 44 as the High Court of Bombay* A contrary opinion was expressed in Kristna Ran* 5 in which the Head Assistant Magistrate who was com- petent to sanction the prosecution had given no formal sanc- tion to prosecute, but had himself taken up the case, and after enquiry committed it to the Session Court for trial. On appeal from conviction, Holloway, J. (with whom Kindersley, J,, agreed) observed : "If there had not been sanction, it does not follow that the objection could have availed the prisoner after trial and decision. The objection is not one going to the root of the Court's jurisdiction, but something (like notice of action in certain civil cases) needed to justify Vfl B. H. 0. R., fr. 61. j ** Ponnu Satni Auyan-ar, M. H. C *3 \. L. K,, IX Pom., 2fc8. Pro , 2nd Dec. 1886: Weir, 1136 *s VII M.fl. C. R. 58. 508 WAIVER OF EIGHTS OF PEOCEDUEE. . [S.257. a court in going on, and preventing it from going on if the objection is taken." The observation was ultra vires, how- ever, and no authority was referred to in support of it, and it may now be considered as overruled. There is a similar provision in S. 339 of the Criminal Procedure Code to the effect that no prosecution for the offence of giving fake evidence in respect of a statement made by a person who has accepted a tender of pardon shall be entertain- ed without the sanction of the High Court ; and the Punjab Chief Court held in Sharina v. Empress,* that the omission to obtain the sanction was a defect of jurisdiction that vitiated the whole of the proceedings. Plowden, J., with whom Burney, J., concurred, said : '' In regard to these latter sections (196 and 197), the giving of sanction is a condition of the jurisdiction, and the absence of such sanction is a defect which vitiates the proceedings ab initio and is not a mere irregularity curable under S. 537. 1 consider that the sanction under 8. 339 is not a sanction under S. 195, and that it belongs to the same class as sanction under S. 196 and S. 197. The language employed in S. 339 is similar to and as strongly prohibitive as that employed in S. 196 and S. 197, and I con- sider that in cases falling under any of these three sections, the sanction of the proper authority is a matter essential to the validity of the judicial proceedings to which the sanction is requisite, that such sanction is indispensable, and its omis- sion is not a curable irregularity but a fatal defect." 257. The maxim Quilibet potestrenrmciarejuri prose intro- ducto, has special operation in matters Waiver of rights iu o f mer e procedure, applying as well to matters of procedure. '. r J ., constitutional law as to any other. That a party may waive any provision of a statute intended for his benefit is even more true to-day than it was among the ancients, as a relaxation of formal rigidity in procedure is the chief characteristic of all legal advancement. It is a general rule that a party may waive any constitutional or statutory provisions for his benefit, except where compliance is positively required. 43 *" 1884 P. P., Or., No. 42. 47 Baker r. Braman, G Hill., 47. Pioraou r. People, 70 N. Y., 4:19. * s Keater v. Ulster Koad Co.. 7 How. Pr., 42. j.arb., 45. Hoyward v. Mayo.- of New York, 8 1'arb., 1 89. Bucklin r. Clmj.in. 53 Barb., 493. Taylor r. Atlautic R. R Co., 57 5. 257.] WAITER OP RIGHTS OF PROCEDURE. 509 It has been repeatedly laid down that where a party has requested 40 or consented 50 to any step taken in the proceed- ings, he cannot afterwards complain of it, however contrary it may have been to his constitutional, l statutory 2 or com- mon law 3 rights. The question of the waiver of constitutional rights has arisen chiefly in the United States, where the State constitu- tions generally provide that no person shall he deprived of life, liberty or property without due process of law ; and it is often attempted to impeach even statutes on the ground of their infringement of that important constitutional provision. In People v. Florence, 4 the objection was against the summary method of perfecting judgments upon forfeited recognizances, authorized by the law of 1844 and 1861 ; and Allen', J., in delivering the opinion of the Court, said : " The defendants are not in a situation to take this objection. A party may by his voluntary act waive any and every right or privilege personal to himself, and affecting only his rights of property, conferred or secured to him either by the constitu- tion or by Statute. The law permitting judgment to be per- fected upon the recognizances upon default in the condition was in fjrce at the time the recognizances were entered into and made a part of the terms and conditions of the under- taking and covenant of the parties, as much as if inserted bodily in the instrument. By the recognizances the defend- ants acknowledged an indebtedness to the people in the sum named, subject to a defeasance, and consented that upon a failure to perform the condition the debt should become ab- solute, and might be made a debt of record and judgment per- fected thereon, which should be a lien upon real property, and upon which execution might issue as upon other judg- * Loew v. State. 60 Wis.. 559. 50 State ?-. Mc-Mahon, 17 Nov., 365. State -. Eangor, 41 Me., 53*. 1 Mattingly r. State, 8 Tex. App., 3 5. Hancock r State, 14 Tex. - A pp., 392. Ptate r. Garney, 37 .'Jo., 156. * Kelley v. People, 13: 111., 3S3. People < MoGann, 43 Hun., ?5. Lynch v. State, 15 \Vis.. "S. Home Ins. Co. r. Security Ins. Co., .3 Wis., 171. Xed r. State,. 33. Miss., 3"4. Burtine r. State, 18 Ga., 534. Maul r. State. 25 Tex., 1G6. South v. State, 88 Ala., 7. Bulliner r. People, 95 II].. 39*. State r. Speaks. 95 X. C., 689. 8 State r. Larger, 45 Mo., 510. State r. Waters. 02 Mo., 196. Croy v. State, 32 Ind., 384. State v. Poison, 29 Iowa, 133. * 59 N. Y., 83. Cited also as Perple r. Quigg. 510 WAIVER UNLIMITED IN CIVIL PROCEEDINGS. [S. 258. ments for the recovery of a sum certain. The cngnizors voluntarily waived their right to any day in court other than that given them by the terms of the recognizance, and their consent to the remedy given by law, subject to and pursuant to which the recognizances were taken, was as in the case of a bond arid warrant of attorney for the confession of a judg- ment, a substitute for, and a waiver of, the necessity of any other process of law." 258. This is particularly the case in civil actions, which usually affect only individual rights, and Right of waiver Tin- therefore, mainly under individual limited in civil proceed- , mi i J r \ j no .g control. I he object or such actions is to enforce private obligations arid duties, and any departure from the usual and constitutional mode of procedure, where the Court has jurisdiction of the subject- matter, is for the parties to consent to or object to, as they see fit. No question of public policy is involved in them. It has been repeatedly held that where mere property rights of a citizen are involved and no principle of public policy is violated, the maxim Privatorum conventio juri publico non derogat, gives way to the maxim Modus et conventio vincunt legem, and he may waive the constitutional right or privilege designed for his protection, and consent to such action as would otherwise be invalid. Thus in Phyfe v. Eimer 5 Rapallo, J., in delivering the opinion of the Court, observed, that "a party can waive a statutory or even a constitutional provision in his own favor, affecting simply his property or alienable rights, and not involving considerations of public policy." The most important right is that of trial by jury, and in civil proceedings, it is settled that a party may waive even that right. 6 In Lee v. Tillotson? Cowen, J., speaking of the consent to the reference of a cause, said: " It is a waiver of the objection, even if the constitution stood in the way. A party may waive a constitutional, as well as a statute provision, made for his own benefit. The contrary argument would deprive a crimi- nal of the power to plead guilty, on the ground that the consti- 5 45 N. Y., 102. 6 Town of Ohio r. Marcy, 18 Wall., 552. Bailey r. Joy, 132 Ma<=s., 35f. Vitrifielcl Co. r. Edwards. 135 Mass.. 591. r. Flanaeran, 50 Tex., BSD. Harris r. Shaffer, 92 N. Car., 30. Grant r. Reese, 82 N. Car., 72. Gregory r. Lincoln, 13 Neb., 352. Hencoi-k ?. Hosmer, 103 111., 245. 24 Wend., 337. S. 268.] WAIVER UNLIMITED IN CIVIL PROCEEDINGS. 511 tution has secured him a trial by jury." In People v. Florence 9 Allen, J., in delivering the opinion of the Court, said : " The right to a trial by jury, if any such right would have existed but for the special laws affecting- the obligations and liability of the defendants, was waived by the terms of the recognizances ard assent of the cognizors. and in all civil proceedings the right of a trial by jury may be waived." In England, the Common Law Procedure Act enacted in general words that "the parties to any cause may, by consent in writing, signed by them or their attorneys, as the case may be, leave the decision of auy issue in fact to the court, provided that the court, upon a rule to show cause, or a judge on summons, shall, in their or his discretion, think fit to allow such trial"; and it has been held that the decision will not be void, even where there is no consent or order in writing, as to the trial, because the parties who have consented to the exercise of the general jurisdiction possessed by a judge in a case in which they knew that the statutable preliminaries had not been complied with, cannot be allowed to question the jurisdiction on that ground. 9 In India there are no constitutional rights in the ordinary sense of the word, and in civil cases 110 trial by jury; but the waiver of statutory rights in civil proceedings, is recognized as in the English law. Thus in Beer Cliunder lioyv. Tumeczood- deen, 10 the purchaser of a plaintiff's rights was substituted for the plaintiff on the record, and the irregularity was held to be cured by the defendant's consent, implied in his offering no opposition, and in his appealing from the judgment on the merits, making the substituted plaintiff one of the respondents. The same was held in Shushee Bhoosun v. Muddon Mohun Chattopadhya, 11 Ainslie, J., observing that " as the substitution took place before judgment in the first court and was not objected to, it is too late to take the objection now." This decision proceeded chiefly on the ground that the irregularity of the substitution did not prejudice anyone, and was therefore not to be noticed, as S. 350 (now 578) of the Civil Procedure Code provided that no decree would be reversed or substantially varied, "on account of any error, defect or irregularity, whether in the decision or in any order passed in the suit, or otherwise, not affecting the merits of the case or the jurisdic- tion of the court." 8 59 K Y., 83. Andrews v. E'li.t, 5 E. & B., 02 ; (i K fc R. 538. 10 XII W. R., 87. Vide to similar effect Lall Mahomed v. Peer Nuzur, XVIII W. ., 511- II. C. L. R., 297, WAIVER UNLIMITED IN CIVIL PROCEEDINGS. [S. 258. In Parbutty v. Hifjfjln^ 12 the plaintiff having died, two persons claiming to be her legal representatives adversely to each other were made co-plaintiffs ; and Jackson, J., in delivering the judgment of the Court, observed that he was not prepared to say that that was strictly regular, " but thai which is in itself unusual and irregular may often be cured by the consent of the parties; and in this case it appears that every one did a<:ree to the course t-iken; and it is clear that such agreement having taken place, it was a more convenient course for every one that the trial should proceed and a decision bd given than that the suit should t-ither be dismissed or be allowed to remain in abey- ance for an indefinite time, while the question between Ihe claimants as to who was to succeed the deceased plaintiff in the suit was being determined." In Parvatilai v. Vinayek Pandiirung, 13 a defendant allowed the plaintiff to be wrongly represented in an appeal by an agent, and it was held that he was estopped from objecting to the agent carrying on the execution-proceedings on behalf of plaintiff, and appealing in course of them when necessarv. West, J., in delivering the judgment of the High Court observed, that " his right to represent Parvatibai might have been challenged in the appeals, and possibly the same reasons would apply to representation in an appeal as in an original suit, but the objection having been virtually waived, cannot be taken after the defendants have had their chance of success in the litigation." The rule is not restricted to the case of the plaintiff's substitution. Thus in Ram Das v. The Oflicid Liquidator, 1 * it was held that the entertaining of an application, and the deciding upon a matter within the ordinary jurisdiction of the court, on a close holiday, was at the furthest an irregu- larity, "the right t) object to which can be, and was in this case, waived by the conduct of the parties." So far is the rule carried, that even agreements as to certain steps in proceedings are considered binding. Thus in Davies v. Burton, 15 the defendant's attorney, having by his consent orally agreed, at a private interview with the plaintiff's attorney, to admit on the trial, all the facts except the merits, provided the plaintiff waived tlie holding him to bail, the court held the defendant specifically bound by the agreement, and 12 VIII B. L. R App.. 98. I i* I! L. 11. IX All., 382, 13 I. L. Ii., XII Bom.' ; G8. 13 i C.& P., ICC. S. 239. j BIGHT OB 1 WAIVER IN CRIMINAL PROCEEDINGS. thntf took the facts as actually admitted at the trial, specially on the ground that the defendant had received a benefit for it. 259. The right of waiver stands, however, on a different footing in criminal proceedings, which Essentially different are to be distinguished from civil pro- character of criminal cee( |ings, a s involving a breach and proceedings in regard to . , . & ., , (fj. . . right of waiver. violation ot the public rights and duties affecting the whole community. The public as well as the individual have an interest in every criminal trial. ' The king has an interest in the'preservation of all his subjects." 1G The life and liberty of the citizen is a matter of supreme importance to the state ; and it cannot allow him to throw either away by failure, intentional or unintentional, to take advantage of constitutional safeguards. This was all the more necessary in early times when counsel were not allowed to defend even persons indicted for murder, and it was a particular duty of judges to see in the interest of such persons that the proceedings against them were regular and strictly legal. The change in that system of defence did not altogether change the practice of the courts, traces of which may still be noticed in some matters. In People v. McKay Spencer, C. J., observed, that it was ' a humane principle, applicable to criminal cases, and especially when life is in question, to consider the prisoner as standing upon all his rights, and waiving nothing on the score of irregularity." In Cancemi v. People, Strong, J., in delivering the opinion of the Court, said : " Criminal prosecutions involve public wrongs, ' a breach and violation of public rights and duties, which affect the whole community considered as a community,, in its social and aggregate capacity.' The end they have in view is the prevention of similar offences, not atonement or expiation for crime committed. The penalties or punishments, for the enforcement of which they are a means to the end, are not within the discretion or control of the parties accused ; for no one has a right, by his own vo- luntary act, to surrender his liberty or part with his life. . . . Criminal prosecutions proceed on the assumption of such a forfeiture (as may be incurred by way of punishment for crime), which, to sustain them, must be ascertained and 16 4 Black. Com., 189. | 17 18 Johns., 218. 1S 18 N. 7., 13R, 65 514 EIGHT OF WAIVER IN CRIMINAL PI.OCEL DINGS. [S. 263 declared as the law has prescribed, . . These considerations make it apparent that the right of a defendant in a criminal prosecution to affect, by consent, the conduct of the case, should be much more limited than in c ; vil actions. It should not be permitted to extend so far as to work radical changes in great and leading provisions as to the organization of the tribunals or the mode of proceeding prescribed by the consti- tution and the laws." 200. Even in the administration of criminal law, however, many legal provisions are made for the Rights may be waived Secur j ty aD a benefit of the accused, which to a certain extent in -, . r- i it. -n criminal proceedings. he ma y waive afc hlS pleasure ; It Will not do to say that because the State has a peculiar interest in protecting one accused of crime to the extent of his constitutional rights, he shall in no case be allowed to waive any of them, for in some cases it is to his interest to waive them, and the denial of the right to do so would defeat the very object in view when the rights were given, and cause them to operate to the injury rather than to the benefit of the accused. The true distinction appears to be, as observed by Mr. Elliott in an article on the waiver of constitutional rights, 19 that "where the right is solely for the " benefit of the accused, and not jurisdictional, it is right, it is "just, that a waiver of it by him of his own free will and desire, " without solicitation or persuasion, causing some action to be " taken, upon the faith of such waiver, that would not other- " wise have been taken, should be binding upon him." The various Supreme Courts in the United States have repeatedly laid down the same. Thus in State v. Kaufman, Seevers, J., in delivering the opinion of the Supreme Court of Iowa, observed : "The first impression wculd be, we think, that a constitutional provision could be waived as well as a statute. Both, in this respect, have equal force, and were enacted for the benefit and protection of persons charged with crime. If one can be vaived, why not the other ? A conviction can only be legally obtained in a criminal action upon competent evidence; yet if the defendant fails at the proper time to object to such as is incompetent, he cannot afterward do so. He has a constitutional right to a speedy trial, and yet he may waive this provision by obtaining a continuance. A plea of guilty ordinarily dispenses with a i VI Or. L. M.. 189. j 20 5i Iowa 578 . S. 260.] RIGHT OF WAIVER, IN CRIMINAL PROCEEDINGS. jury trial, nnd it is thereby waived. This, it seems to us, effectually destroys the force of the thought, that * the State, the public, have an interest in the preservation of the lives and the liberties of the citizens, and will not allow them to be- taken away without due process of law.' ... It matters not whether the defendant is, in fact, guilty ; the plea of guilty is just as effectual as if such was the cass. Reasons other than the fact that he is guilty may induce a defendant to so plead, and thereby the State may be deprived of the services of the citizen, and yet the State never actually interferes in such case, and the right 'of the defendant to so plend has never been doubted. He must be permitted to judge for himself in this respect." In People v. Rathbun, 21 Cowen, J., observed : " The prisoner may even waive his right to a trial at the hands ofaiury on tho / U mJ merits, by pleading guilty. Having this power,. no one will pretend that he cannot consent to any thing less. lie may waive any matter of form or substance excepting only what may relate to the jurisdiction of the court." In Cancemi v. Peopls, 22 Strong, J., in delivering the opinion of the court observed that "effect may justly and safely be given" to the consent of tho accused "in many particulars, and that the law does, in respect to various matters, regard and act upon it as valid. Objections to jurors may be waived ; the court may be substituted for triers to dispose of challenges to jurors ; secondary in place of primary evidence may be received ; admissions of facts are allowed ; and in similar particulars, as well as in relation to mere formal proceedings generally, consent will render valid, what without it would be erroneous." In Pierson v. People?* Earl, J., observed: "We are of opinion that the prisoner could withdraw his challenge and waive .any irregularity which existed in this case. The maxim Quilibet potest renunciare juri pro ss introducto is of quite a general application. One may waive constitutional provisions intended for his benefit,. A prisoner may waive a trial by jury and plead guilty ; he may waive a plea of autre- fois acquit by not interposing it or withdrawing it; he may waive or withdraw a challenge to a juror ; he could waive his right to have a challenge of a juror for favor tried by triers, and consent that ifc be tried by the Court; he may waive 2 1 21 Wend., 542. | 2a 18 N. Y., 137 r 3 79 N. Y.. 439. 51(3 RIGHT OF WAIVER IN t'RIMINAL PROCEEDINGS. [S. 26O objections to improper or incompetent evidence; in a Court of Special Sessions he may waive a trial by jury and be tried by the Court; he may waive a challenge to the array of jurors by a challenge to the polls ; he could consent to the separation of the jury during the trial, when such separation, without such consent, would be ground of error. A man cannot legally be indicted and tried as accessory to a felony until the principal be convicted ; and yet, if he go to trial, without insisting on the objection, he is held to have waived it." In State v. Albee, 24 Smith, J., observed: " A person ought not to be heard to complain of that to which he has consented. For instance, he may not object to the grand jury after he has pleaded to the indictment; nor challenge a petit juror for a known cause after verdict ; nor object after trial that a copy of the indictment was not furnished him, when the statute requires it ; nor that inadmissible evidence was received without objec- tion ; nor that the jury separated after verdict with his consent. These are familiar examples of the waiver of well-recognized provisions, intended for the protection of a party/' In re Staff, 23 Lyon, J.,in delivering the opinion of the Court observed : " Section 7 of Article 1 (of the Constitution) confers many rights upon a person accused of crime, every one of which he may waive without authority of statute, as has often been judicially determined, except the right to be tried by a jury. Such waiver may be express, or it may be by failure to make due objection and exception. The accused shall enjoy the right to be heard by himself and counsel ; yet he need not have counsel unless he chooses, and need not say a word in his own defence ; he may plead guilty, andthtis waive every right con- ferred in the section. He may demand the nature and cause of the accusation against him ; yet when arraigned he may waive the reading of the indictment or information. He has the right to meet the witnesses face to face, yet he may lawfully consent to the reading of depositions of absent witnesses in evidence. He is entitled to compulsory process to compel the attend- ance of his witnesses, yet he may not avail himself of such process. He is entitled to a speedy public trial, yet with his consent trial may be delayed for years, and no doubt the public at large may properly be excluded from the trial at his request. He is entitled to a trial in the comity or district previously ascertained by law wherein the offence was com- 2 * UL N. IK, 123. [ 2 63 Wis., T.85. 8. 261.] WAIVER OP BIGHT TO NOT CRIMINATE ONESELF. initted, yet be may have a change of venue, and with his con- sent the cause may be sent to some county or district and tried therein, hundreds of miles distant from that in which the crime was committed. He is entitled to be tried by a jury, that is, a common-law jury, which must consist of twelve qualified jurors ; yet if one of the jurors is disqualified for alienage or other cause, in this State the objection is waived by the failure of the accused to challenge such juror." 25 * 261. One of the most important constitutional rights of an Waiver of accused's accused is, that no person shall be corn- right of not being asked pelled in criminal case to be a witness, to criminate himself. against himself. In the United States, this is provided for by the Constitution. It is quite settled law, however, that the accused may waive this provision, this constitutional protection by giving evidence on oath, when he will be bound to answer even questions which may criminate himself. By offering himself as a witness, he waives his right to object to any question pertinent to the issue, and his constitutional privilege of refusing to furnish evidence against himself; and subjects himself to the peril of being examined as to any and every matter pertinent to the issue. 27 If he answers any questions upon the subject, he canixot after- wards interpose his privilege, but is liable to be fully examined and cross-examined upon the matter. If he testifies that be did not commit the crime imputed to him, he renders himself liable to be cross-examined upon all facts relevant and material to that issue. In Connorsv. People Church., C. J., in delivering the opinion of the Court, broadly said : -"We think the rule against being a witness is one which may be waived by an accused person. . . . Bv consenting to be a witness in his own behalf under the */ O Statute of 1869, the accused subjected himself to the same rules and was called upon to submit to the same tests which could by law be applied to the other witnesses ; in other words, if he availed himself of the privilege of the Act, he assumed the burdens necessarily incident to the position. The prohibition in the Constitution is against compelling an accused person to become a witness against himself. If he assents to become a witness in the case voluntarily and without any compulsion, it would seem to follow that he occupies for the time being the position 28 State p. Vogel, 22 Wis., 471. | 4r McGarry v. People, 2 Laus.,227. as SON. Y., 243. 518 WAIVER OF RIGHT TO NOT CRIMINATE ONESELF. [S. 261. of a witness with all its rights and privileges, and subject to all its duties and obligations. If he gives evidence which bears against himself, it results from his voluntary fact of becoming a witness and not from compulsion. His own act is the primary cause, and if that was voluntary he has no reason to complain." This was quoted with approval in State v. Oler, 2g in which Foster, J., in delivering the opinion of the Court, said: " If the respondent had not seen fit to make himself a witness in his own cause, the fact that he did not choose to testify could not have been commented upon by the State's counsel, nor would the jury have been at liberty to draw any inference detrimental to him from his silence. But, when he made himself a witness- in-chief, he subjected himself to the government's right of cross- examination. By electing to testify, he placed himself in the attitude of any ordinary witness, irrespective of any interest in the cause. . . . The respondent Avas not bound to volunteer any statement concerning the matter of the charge against him, nor could he be compelled to disclose any fact, or answer any ques- tion which would expose him to another criminal prosecution, or tend to convict him in this. Such immunity from confession, examination, argument or prejudicial inference, was his un- doubted privilege ; but he chose to waive it, and insisted upon his right to testify ; and having testified concerning a part of the transaction, in which it was alleged that he was criminally concerned, without claiming his constitutional privilege, it was too late for him to halt at that point which suited his own convenience. It is clear, upon reason and authority, that he might have been compelled to answer the question propounded by the State's counsel. It was material to the issue, if not directly involved in his own proffered testimony. At this point, for obvious reasons, he saw fit to close his lips, and the Court allowed him to remain silent. Of this mistaken clemency he cannot now be heard to complain." Judge Cooley in his work on Constitutional Limitations speaking of that decision, says: 30 "We not only approve of this ruling, but we should be at a loss for reasons which could furnish plausi- ble support for any other. It is in entire accord with the practice which has prevailed, without question, in Michigan, and which has always assumed that the right of comment, where the party makes himself his own witness and then refuses to answer proper questions, was as clear as the right to exemption from unfavorable comment when he abstained from asserting 28 52 N.H,4o9. 1 3 F. 3i7(n). S. 261.] WAITER OF EIGHT TO NOT CRIMINATE ONESELF. his statutory privilege." In State v. Albee* 1 Smith, J., said : " The cross-examination of a prisoner who volunteers himself as a witness is permissible, because by electing to testify he subjects himself to the scrutiny of a cross-examination, and consents to waive the constitutional provision that no subject shall be compelled to accuse or furnish evidence against himself." 32 The Supreme Court of Massachusetts also has repeatedly held that if the accused puts himself on the stand as a witness in his own behalf, and testifies that he did not commit the crime imputed to him, he thereby waives his constitutional privilege, and renders himself liable to be cross-examined upon all facts relevant and material to that issue, and cannot refuse to testify to any facts which would be competent evidence in the case, if proved by other witnesses. 33 In State v. Wentivorth, 3 * a person accused of selling intoxi- cating liquors offered himself as a witness, and was on cross-exa- mination questioned concerning other sales of intoxicating liquors made by himself. Objection was taken to this on the ground that the waiver of his privilege as to giving no evidence tending to criminate himself applied only to the charge on trial. The ob- jection was overruled however, and though the accused was not compelled to answer, yet his refusal to answer was taken into consideration against him. Appleton, C. J., in delivering the opinion of the Court, said: " A witness on cross-examination must answer as to all matters pertinent to the issue, whether inquired about in the direct examination or not, unless a per- sonal privilege is invoked and the matters elicited would tend to criminate him ; in which case the cross-examination can be extended only to the subject-matters of enquiry of the direct examination." Still more recently, the Supreme Courtof Florida has held that it is a just and correct rule that if a witness, with full knowledge of his rights, consents to testify about the very matter that may criminate him, without claiming his privilege, he must submit to a full, legitimate cross-examination in reference thereto ; as otherwise a witness would have it in his power to make a partial statement of a matter to the detriment of one party without any adequate means of relief." 35 Questions tending to discredit his veracity may be put to him, 30 even though they operate materially against him as the accused, because having voluntarily placed himself in the wit- ai 61 N. H , 423. 32 State v. Archer, 51 N. H., 165 . , 33 Com. r. Lannan, 13 Allen, 503. State v. Hnff, 11 Ney., 17. Com. r. Mullen, 97 Mass., 545. 65 ile., 231. Edward Senior, 32 L. R. A., 133. 520 WAIVER OP ORDINARY FORMS OP PROCEDDRE. [3. 262. ness-box, he must abide the consequences. He may be asked as to whether he made statements inconsistent with those he may make as a witness before the Court. 37 Indeed, it becomes the duty of the Court to interrogate him as fully as may be need- ful to test the truth of his direct testimony. 38 262. There can be still less objection to a waiver of mere ordinary forms of procedure. Thus, any Waiver of ordinary - hfc j b statute or otherwise to forms of procedure. i r t.- i C L i the accused tor his benefit such as to have a copy of the indictment, or a list of the jurors or of the witnesses for prosecution, at a particular time or before trial may be waived, either in words, or by omission to apply for the same. 33 Thus, where a list of the witnesses for the crown is required to be givf.n to the accused person at the same time with the copy of the charge, and it is given later, but. the accused pleads not guilty, he is deemed to have waived the irregularity, aad the witnesses will notwithstanding be examined at the trial. 40 Similarly, the irregularity of intro- ducing evidence before the indictment is read, may be consider- ed waived if nob objected to to " and when the defendant enters into a recognizance for his appearance in court, without making any objection to the sufficiency of the warrant, or to the sufficiency of the verification thereof, he is estopped from all objection to the warrant.* * So also where a statute requires the sentence to be postponed for a given time after verdict, the accused may waive the delay, and consent to its immediate rendition. 41 On the same principle, it is established as a general rule, that exceptions to the rulings or the instructions of the Court must be taken at the time they are given ; 42 and where an exception is not taken to the instructions to the jury before the jury gives its verdict, they are considered waived. Nor is this rule a merely technical one, as if the objection is brought to the notice of the court in time, the court has an opportunity of modifying, or explaining the instructions. 43 " Com. f. Tolliver. 119 Mass.. 312. 88 Gill r. People, 5 Thomp & Co., 308. 3-9 Driskill v. State, 45 Ala., 21. Miller v. State, 45 Ala., 24. Barnett v. State, 83 Ala , 40. Dawaon r. State, 29 Ark., llfi. Johnson r. State, 43 Ark., 391. McCoy r. State, 46 Ark., 141. State r. Axiom, 23 La. Aun., 621. State r. Vester, 29 La, Ann., R20. State v. Bussel, 33 La. Ann., 135. llcCall r. UuitiHlSutes, 1 Dak. ,020. Record v. State. 38 Tex., 521. Barrett r. State, 9 Tex , App. 33. Peterson r. State, 45 Wis.. 535. * Reg. r. Frost. ,9 C. & P., 162. 40 Loem r. State, 67 Iowa, 641. 40* State r. Longfcon, 35 Kans., 375. 41 People v. Robinson, 46 Cal.,94 42 Turner r. Yates, Ifi How., U. United States v. Breitling, 20 How., 252. Barton . Foray th, 20 ITow., 535. * 3 Phelpsr. Mayer, 15 How., 160. S. 262.] WAIVER OF ORDINARY FORMS OF PROCEDURE. 521 Similarly exceptions to evidence must be taken as soon as the Court decides to admit or reject it ; and if not made at the time, they are considered waived, 44 unless in case of the incom- petency of evidence, the in competency was not known at the time. In Sheetul Perskad v. Junmejoy MullicTc^ Macpher- son, J , in delivering the judgment of the Court said that there was " no doubt that it, is the duty of the party, who wishes to object to evidence, to object to it in the first instance, and not to lie by in both the lower courts, and then come in special appeal here, and raise objections for the first time." Nor is this rule merely of form, as in this case also, the opposite party may, if apprised of the objection in time, be able to remove it by further testimony. 40 In State v. O'Connor^ Henry, J., in delivering the opinion of the Court observed, that such was " the interest of the State that none but the guilty should be confined on criminal charges, that the Court should exclude from the jury, all improper evidence against the accused whether the objection be general or special." The correct "rule, however, appears to be that if secondary evidence is not objected to at the time of its admis- sion, it will be taken "that the parties have chosen to come to ti'ial upon the materials put before the Court, and the evidence will not be excluded when objection is raised against it on special appeal." 48 So also objections to the incompetency of a witness must be taken at the time when his deposition is taken, as they may then be removed by the opposite party, and if not made at that time, they will be considered waived. 49 And this state- ment of law was approved in Shutle v. Thompson in which a deposition was admitted in evidence, even though it had not been recorded by an authorized officer, nor as required by law after affidavit of the cause or reason for taking, and it was not even certified that the witness had been sworn to testify to the whole truth. Strong, J., in delivering the opinion of the Court, said : u It is obvious that all the provisions made in the statute respecting notice to the adverse party, the oath of the witness, the reasons for taking the deposition, and the ** Griggs v, Howe, 31 Barb., 100. Poole v. Fleeger, 11 Peters, 185. State v, CroRSwhite, 130 Mo., 359. Heely , Barnes, 4 Den. N. Y., 73. * XII W. B., 244. *a Vide Phelpsr. Mayer, 15 Dow., 100 66 *7 fi5 Mo., 374, *s Choolie Lall v. Kokil Singh, XIX W. R., 248. * B U. S.7-. One case of hair pencils, 1 Paina, 400. 30 15 Wall, 151. 522 WAIVER OF ORDINARY FORMS OF PROCEDURE. [S. 262, rank or character of the Magistrate authorized to take it, were introduced for the protection of the party against whom the testimony of the witness is intended to be used. It is not to be doubted that he may waive them. A party may waive any provision, either of a contract or of a statute, intended for his benefit. If, therefore, it appears that the plaintiff in error did waive his rights under the Act of Congress if he did practically consent that the deposition should be taken and returned to the court as it was and if by his waiver he has misled his antagonist if he refrained from making cj <^5 objections known to him, at a time when they might have been removed, and until after the possibility of such removal had ceased, he ought not to be permitted to raise the objections at all." In Ray v. Smith, l the deposition had been taken de bens esse, and before the trial the defendant moved to suppress it. But when it was offered at the trial, it was read without objection, and without exception, and the objection was held to be waived. In Levin v. Russell, a Grover, J., in delivering the opinion of the Court, observed, that it was "entirely clear that a party who has sat by during the reception of incompetent evideDce without properly objecting thereto, and thus triken his chance of advantage to be derived by him therefrom, has not, when he finds such evidence prejudicial to him, a legal right to require the same to be stricken out." A party having the power to waive most rights, may under various circumstances waive the right of being confronted with his witnesses, 3 and he does so by absconding during the trial.* He may by consant submit to evidence by depositions, and to other testimony not delivered orally at the trial, 5 And the accused is held to waive his right to be confronted by the witnesses by allowing their depositions to be put iu. So also where certain witnesses were absent, and counsel for the prisoner offered in open court to admit that they would testify to the facts stated in the affidavit supporting a motion for adjournment on that ground, it was held a i 17 Wall , 411. 8 42 N. Y.,251. Hancock??. State, 14 Tex. App., 392. Allen t>. State, 16 Tex. App., 237. Williams r. State, fil Wis., 281. State v. Pooks, 65 Iowa., 452. Butler r. State, 97 lad., 378, * Price v. State, 36 Miss., 531. Fight v. State, 7 Ohio, 180. Gore v. Sfcato, 52 Ark., 285., 5 Rex v. Morphew, 2 M. & S. 602. Hurley v. State, 29 Ark., 17. Wightman r. People, 67 Barb., 44. People v. Guidice, 100 N. Y., 503. 6 People r. Murray, 52 Mich., 288. Hancock -. State, 14 Tex. App., 392. S, 26*.j WAIVER OF ORDINARY FORMS OF PROCEDURE. waiver by the accused of his constitutional right to be confronted by the witnesses against him. 7 So far is the rule carried, that S. 532 of the Criminal Pro- cedure Code provides, that " if any Magistrate or other authority purporting to exercise powers duly conferred, which were not so conferred, commits an accused person for trial before a Court of Session or High Court, the Court to which the commitment is made may, after perusal of the proceedings, accept the commitment if it considers that the accused has not been injured thereby, unless, during the inquiry and be- fore the order of commitment, objection was made on behalf either of the accused or of the prosecution to the jurisdiction of such Magistrate or other authority." The present tendency is, even apart from such waiver, not to allow any effect to mere irregularities of procedure, except when they should have occasioned a real failure of justice. Thus in British India, it is expressly provided, that even the fact of an inquiry or trial being held in a wrong district or other local area, 8 or of a charge not being framed 9 does not necessarily invalidate the final finding or sentence, except when a failure of justice has resulted from the same. S. 537 of the Criminal Procedure Code further provides that no finding, sentence or order passed by a court of competent juris- diction shall be reversed or altered on reference for confir- mation or on appeal or revision, on account of any error, omission or irregularity in the complaint, summons, warrant, charge, judgment or other proceedings before or during trial or in any inquiry or other proceeding under the Code, or of the omission to revise any list of jurors or assessors in. accordance with Section 324, or of any mis-direction in any charge to a jury ; unless such error, omission, irregularity, want or misdirection has occasioned a failure of justice. The presence of the presiding Judge at a trial before him is- not a matter of mere form, and may, therefore, not be waived; and the verdict was set aside, where for two days during the argument, the Judge was not in the Court-room, but in another part of the building, engaged in other business, and ' United States r. Sacramento' 2 Mon., I 8 S. 531. Act, X of 1882. 239. 8 S. 535 ; Act X of 18*2. 524 TIIE ACCUSED MAY RIND HIMSELF BY AGREEMENT. [S. 13. by the respondent's consent, certain members of the bar presided in his place. 10 A The same was held in India in Shumbhu Nath Sarkar v. Earn Kamal in which a stipendiary magistrate and two honorary magistrates heard and disposed of the case, but the conviction was set aside, inter alia, on the ground that though the Bench would have been properly constituted by the stipendiary magistrate, and one honorary magistrate, yet. one of the honorary magistrates was absent on one day, and a very important portion of the evidence was recorded in his absence, and yet he joined again in proceedings and took part in the final discussion, which resulted in the conviction, and this mode of trial must have seriously prejudiced him. 263. Iii the United States, it is considered that an accused may even bind himself by his The accused may b-nd agreement i n a criminal cause, 14 as himself by agreement . *? . in criminal proceedings. " where a great number of people are indicted for a riot, they may move that the prosecutor should name a few of them, and try it only against them, the rest entering into a rule, if the few are iound guilty to plead guilty too ; and this has often been done to prevent multiplicity of charges." 15 A. The decision in Soorendro Pershad v. Nundun, ai is not against this view. Phear J., no doubt, in delivering the judgrnout of a Division Bench of the Calcutta High Court observed that the parties might, " as no doubt often happens in this country, either expressly or impliedly, consent to the suit being determined by a Judge who has not been present throughout the trial, and to his taking into consideration evidence which had not been given before him." The observation had no reference to acasein whioh the presiding judge was absent from the court while the evidence was being recorded, but to a case in which after some of the evidence had been recorded the suit was trans- ferred without the consent of the parties to another judge, who gave his decision without personally hearing the whole of the evidence. Phear, J., used similarly broal language in Syud Mahomed v. Oomdnh Kfianum, 1 * having observed, that " it is often the case that the parties do consent to a judge determining the case between them on evidence which he has not himself orally heard, and which having been given before another judge thus conies before him only in the shape of depositions." The evidence in that case had been recorded by the predecessor of a judge, and the observation can be no authority for a judge (one of the judges forming the trying Bench) leaving the court, while the evidence is being recorded before him, and for the parties being able to waive the irregularity of the record having gone on during his absence. o Meredith r. People, 61 111., 479. 11 XX[ W. R., 196. 12 XIII W. 11., 1S4. 13 XIII C. L. R., 212. 11 State v. Jones, 18 Tex., 874. Grant r. Sfnto, 3 Tex. App. 1. State 7-. Mansfield, 41 Mo., 470. Hoaeubttum v. 8., 33 Ala., 354. Bell v. State, 44 Ala., 393. Jackson r. Com., 19 Grat., 656. Wilson r. State, 42 Miss., 639. Williams v. State, 12 Ohio, 62?. Wightmnn r. People, 67 Barb., 441. Anonymous, Holt. 635 : SSalk.. 317, Reg. V. Mid.llemoie, G Mod., 212. . 263.] THE ACCUSED MAY BIND HIMSELF BY AGREEMENT. 525 Thus in State v. Poison 16 it was agreed in open court, between the district attorney and the defendant's counsel, in the presence of the defendant and of the jury, that, in order to save time and facilitate the trial of the cause, the testimony taken upon the former trial should be read to the jury, as a substitute for the oral testimony of witnesses in court. A conviction followed, and it was held that the constitutional provision was a personal right, and in no manner affected the jurisdiction of the court, and that it might be waived. Agreements to be binding in criminal proceedings must generally be as to mere forms or matters of procedure. Thus in People v. Rathbun, 11 Cowen, J., said : ** The courts specifically enforce agreements made in respect to the course of the cause, by persons properly authorized. They do not allow the party to violate a stipulation and put his antagonist to an action. What ought to be done, they will consider either as having been done, or summarily enforce its execution by process of contempt I will not deny that agree- ments may be thus enforced in a criminal case. Suppose a prisoner to declare on full advice that he will plead guilty, on which the prosecutor's witnesses are all dismissed ; might not the court order the plea entered as if the same consequence had been produced in a civil cause on an attorney stipulating to give a cognovit ? All this sounds harsh, and no court would enforce a stipulation to plead guilty, unless in a case where they plainly saw that the object of the prisoner was to defraud the course of justice. Agreements to waive his personal rights ought not to be enforced except in such cases, though the right of the court may be exercised to the same extent as in civil causes. People v. Mather was referred to as a case in which the accused had been allowed to revoke his agreement. He had stipulated that every juror called should be considered as challenged by each side. The juror examined appeared to be biased against the accused, who was allowed to revoke his side of the agreement ; that is, waive his challenge. The court put his rights on the general ground that a party may always waive an advantage to himself. The rule has no application where he is seeking to frustrate an agree- ment made for the benefit of the prosecution. But in the case at bar, the agreement of the prisoner when he sought to 15 2'J Iowa,, 133. ir i!l Wend., 518. i" 4 Weud., 229. 526 THE ACCUSED MAY BIND HIMSELF BY AGREEMEHT. [g. 263. revoke it by demanding the ordinary triors, had been executed. The juror had been put upon his trial before the court, and ifc did not lie with the prisoner to revoke it at that stage, any more than if the trial had terminated, and the juror had been sworn and taken his place in the box. Nothing indeed ap- pears, in the instance before us, which would have seriously affected the interests of justice, had the court given way, but the principle put was convenience. The delay arising from. a formal trial for each juror was doubtless alluded to, which is, to be sure, a mere inconvenience. But it is sometimes an harassing and vexatious, not to say a dangerous inconvenience, even for the prisoner. A jury fatigued by delay cannot well appreciate his defence. The Attorney-General had waived the same right on his part, upon the same reason, and the formation ot the jury had progressed upon both sides. Had the court given way to one side, justice would have demanded the same thing for the other ; and thus, perhaps, the jury, so far as it was formed, might have been withdrawn, and a new jury throughout placed in the box. The prisoner had but to intimate his desire to have triors, in reply to the suggestion of the court, when his right would, no doubt, have at once been recognized. I do not deny its importance ; and the court will allow and even advise him to recall any im- provident concession which is apparently prejudicial to his rights. They will do so on the mere suggestion of counsel that the concession was prejudicial ; but not where injury is evidently out of question on the side of the prisoner, while the prosecution may sustain a serious inconvenience. " An agreement (>y the accused will, however, not receive any effect, where the matter agreed upon is important and material to the charge. Thus, where on demurrer to an indictment for the larceny of a dog and a collar, counsel had agreed to treat the indictment as charging the dog to be tame and as being silent about the collar, the stipulation was held to be void ; because, otherwise, it was observed, "the defendant would not be tried upon the presentment of the grand jury, but rather upon the consent of the counsel." 19 An indictment or presentment is necessary to give the court jurisdiction, and without one or the other, the court has no jurisdiction to try a person, even with his consent. 20 It is in 18 People v. Campbell, 4 Park. Cr.. 386. NcwComb v. St;\to ; 37 Miss., 383. State r. Jones, 18 Tex., 874. 20 Ex-partc Me (.-hi sky, 40 Fed. 71, S. 24.] WAIVER NOT ALLOWED WHEKE PREJUDICIAL. 507 fact a general principle, that " where the matter is jurisdic- tional and affects the public, no agreement of individuals should be allowed to alter it. The State has an interest ia punishing the guilty for the good of society, as well as in protecting the innocent, and it would never do to permit an accused to select his own tribunal and be tried, in his own way, by agreement with a careless or dishonest prosecutor." 21 264. Certain mere rules of procedure also are not allowed to be waived, and this is specially the case Waiver not allowed whepe ifc ig considered fchat the Wa ivOP where it is prejudicial to .,, .,..,, . accused. W1 " prejudicially afreet the accused. Thus the accused is not allowed to waive his plea ; so that a trial and verdict without plea, even where the accused consents will not authorize a judgment against him. 23 As a general principle, proceedings on a criminal prosecu- tion will therefore be bad unless they are conducted in the manner prescribed by law ; and if they are substantially bad in themselves, the defect will not be cured by any waiver or consent of the prisoner. 23 In the case cited, the Bench of Magistrates trying a jailor deputed one of them who was the Superintendent of the jail to examine some of the persons whom the accused applied to call for his defence and who were connected with the jail, in order to guard against devia- tion, and the depositions so taken were placed on the record, " to be used by either party, though not themselves as evidence." The District Magistrate said that the accused had agreed to that, and relied on that agreement as justifying and sanctioning what was done. The High Court held, however, that the consent of the accused could not justify such an irregularity, and said: **When the irregularities are all unfavorable to the prisoner, as in our opinion they clearly were in the present case, it is impossible for any court to consider a waiver or consent as binding on him. It is the duty of Magistrates and all Criminal Courts -to follow the procedure prescribed by law, and there is no law which sanctions their intentional departure from that procedure ; and then attempting to protect themselves against the consequences of such departure by getting the accused i VI Car. L. M., 189. 1 People r. Heller, 2 Utah, 133. a2 Douglass r. State, 3 Wis., 820. *3 Quepn r. Bholanath, I. L. R., II Hoskins . People, 84 111. 87. Cal., 30. 523 WAITER OP LS COMPETENCY OF EVIDENCE. [S. 265. person to say ho consents to it. In the mofassil, most prisoners, not properly defended, would probably assent to any irregularity which the Judge or Magistrate trying him chose to suggest. There would be an end to all proced ure, if such an assent were held to warrant material and important irregularities. " In The Attorney General of New South Wales v. Bertram** the depositions of the witnesses taken at the first trial of the prisoner were read, and the witnesses having been asked in time whether what was read was true, they were submitted to fresh oral examination and cross-examination, and it was attempted to justify that on the ground of the prisoner having given his consent to it, but their Lordships disregarded the prisoner's consent, and spoke of the wisdom of the general understanding that a prisoner on his trial could consent to nothing. This decision does not appear to be correct law at present, and the weight ofopinion is certainly agamst it. Thus in Purmessur Singh v. Scroop Audhikaree 25 the witnesses were not. even examined de novo, but only the evidence given by them at their former trial was read over, and after attestation they were allowed to be cross-examined. The final decision did not indeed turn on the existence of mere consent, but on an inference to be derived from it as to the prejudicial character of the effect of the irregu- larity. However, Hobhouse, J., in delivering the opinion of the Court said : " It appears that it was at the express request of the prisoners themselves that the witnesses were examined in the way indicated ; but still, as a fact, they were examined, and this in a way to which the prisoners not only consented, but which they proposed and pressed; and, this being so, it is impossible not to say that the prisoners by their own conduct have shown that they have not been prejudiced by the error." 265. The question of the waiver by consent of the incompe- tency of evidence has lost much of its Waiver of incompe- importanoe by the increasing removal of teucy of evidence. ^. * . the incompetency. Absolutemcompetency is hardly recognized in any case at present. In all civil proceed- ings the parties to the suit and the husband or wife of any party to the suit, and in criminal proceedings, against any person, the husband or wife of such person, are now, by a general concurrence, deemed competent to give evidence. 28 a* 36 L. J., ?. C. C., 31. I <"' XUI W, K. Cr., 10. 25 3. 1^0. AutI of 1872. 9, 265.] WAIVER OF INCOMPETENT? OF EVIDENCE. $09 Before the removal of this incompetency, the evidence of the wife was in some cases admitted with the consult of the husband, on the supposition that the iucompetency was based only on the interest of the husband in preserving the confidence reposed in her. 27 It was sometimes held, however, that the wife could not testify against her husband, even with his consent; as the public also have an interest, in the preservation of the domestic peace, which m-iy be disturbed by her testimony^ notwithstanding his consent. The question of consent is sfcill important, however,, in some cases of what may be called privileged communica- tions, and in which the privilege may bs waived by consent. Thus, as a general rule, no married person is permit- ted to disclos3 any comiiunicatiou made between the husband and tlie wife, except with the consent of the person, who made it or of his representative in interest. 28 So also no person is permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned. 2J Nor are barristers, attoruies, pleaders, or vakils, or their clerks "or servants, or interpreters, permitted, unless with the client's express consent, to disclose any communication made to them in the course and for the purpose of their employment as such, by or on behalf of the client, or to state the contents or condition of any document with which, they should have become acquainted in course and for the purpose of such employment. This obliga- tion continues after the appointment has ceased, but does not extend to communications made in furtherance of any illegal purpose, nor to facts showing that any crime or fraud has been committed since the commencement of their employment. 3 " As to the nature of the consent, it is provided that the client shall not be deemed to have consented to the disclosure by himself giving evidence, and not even by calling any such per- son as a witness, unless he questions him on matters which, but for such question, he would not be at liberty to disclose on account of his employment. 31 In some countries confidential communications to clergymen and physicians are also privileged in the same manner. ** Barker c. Dixie, Cases temp. Hard., 384. Podley r. Wellesley, 3 C> & P.. 55S. Colbern's Case, I Wheel, j C. , 4,9. 67 " S. 1:2, Act! of 1872. 29 S. 123, Act I of 1872. o S S. 12(1. 127. Act I of 1873. 31 S.3. 12f right of im p, irtial ; Ui . y . T j ie great Magna Charta trial by itiry. L i i , / fe -L provides that no free person is to be imprisoned " unless by legal decision of his equals." And this is taken to bs not the conferring of a privilege which may b3 waived, but the prescription of a trial, and Lord Dacres :Ji and Lord Andley" 3< were held not able to waive their right of trial by the Lords. In India, even this right of a trial by jury may be waived. S. 536 of the Indian Criminal Procedure Code expressly provides, th it ''if an offenca triable by a jury is tried with the aid of assessors, the trial shall not on that ground only be invalid, unless the objection is taken before the court records its finding." There is a similar provision in the statutes of several of the States of the American Union for the waiver of a trial by jury, and it is settled that such statutes are not unconstitutional, and that under them_the right of trial by jury may bs waived. It has repeatedly been held that a statute allowing a waiver of trial by jury, allowing the accused to elect to be tried by a court in lieu of a jury is not a violation of the constitutional provision that the right of trial by jury shall remain inviolate. 34 The public policy which stands in the way of an effectual waiver of a jury by the accused in a criminal case, has been held to be not so inherent in the form and the framework of the government of the United States, as to place it beyond the reach of legis- lative interference. 35 Thus where authorized by a statute, and the constitution not withholding any needful jurisdiction from the tribunal, the defendant consents to be tried by a court without a jury ; he cannot afterwards complain. 30 Where, however, there is no statute, the general rule appears to be that a court without jury has no power of trial. 37 82 Kclyng's C. C., 80. 33 3 How. St. Tr., 401. s* State v. Warden, 40 Conn , 3, '9 Ward r. People, 30 Mich., llfi. Dillingham ?'. State, 5 Ohio, 280. State v. Mansfield, 41 Mo , 470. Brown r. State, 16 Ind., 496. ft 3 L, t re Staff, 63 Wiss., 285. 3' Moore r. State, f]2 Tex. A pp., 117. State r. Hobiuson, 43 La. Ann., 383. Murphy v. State, 97 Ind., 579. State 15. Moody, 24 Mo., 560. Vaughan r. Scade, 30 Mo., 600. Bailey r. State, 4 Ohio, 57. Ward r. People, 30 Mich., 116. 7 League r. State, 36 Incl., 259. People v. Smith, 9 Mich, 193. State r. Maine, 27 Conn., 281-. Wilson o. State, 16 Ark., 601. Bond v. State, 17 Ark., 210. S. 267.] WAIVER OP THE NUMBER OF JURYMEN. 53} Thus in Williams v. Stat3, 33 a jury trial was waived, and the accused convictad, but on appaal, tha Attorney-General sub- mitted to a reversal, on tha ground that a jury trial could not be waived. Some courts, notably the Supreme Court of Iowa, in view of the paculiar terms of the constitutional provision under consideration have held, however, that the rights guaran- teed therein are merely privileges granted to the accused, which he may waive without the aid of any statute. bB Mnny of the cases which hold that the prisoner cannot effectually waive a jury are those of capital offences. The judgment in them may well be sustained on the principle or rule which has sometimes been asserted that in capital cases, itifavorem vitae, the prisoner can waive nothing. Some cases seem to make a distinction between felonies and misdemea- nours, holding that in a prosecution for a misdemeanour a jury may be dispensed with by the consent of the accused. Thus in Darst v. People, the waiver of a jury in a mis- demeanour case was held valid ; Lawrence, J., in delivering the judgment of the court observing, that " we know of no reason why it may not be (waived) in trials for misdemeanours." This distinction was, however, ignored in State v. Lockwood ; 4l and there seems to bs no substantial ground upon which to rest any distinction in respect to misdemeanours punishable with imprisonment. If a line can be drawn between different grades of crime, a plausible reason may perhaps be given for holding that misdemeanours punishable by fine only are dis- tinguishable from other crimes ; as a criminal prosecution for such a misdemeanour is in its results essentially like a civil action sounding in tort. * 2 267. The general rule appears to- be that even the right of trial by the fixed number of jurymen Waiver of the number b waived, that a person cannot of jurymen. . . ' consent to be tried by a larger or smaller number ; and that no other number of men, than that fixed bylaw, will meet the requirements of the law. This has been laid down repeatedly in regard to the trial of capital offences and felonies, on the ground that the State has an interest in the preservation of the lives and liberties of its subjects, and they cannot be allowed to be taken away s 12 Ohio, R22. | *<> 51111., 286. 30 State v. Kaufman, 51 Iowa, 57R. * l 43 \Vis., 4'J3. * 2 lu re Staff. 03 Wis 283. 532 'WAIVER OF THE NUMBER OF JURYMEN. ^S. 267, without cine process oflaw. Besides waiver and consent can have no application in a criminal prosecution, which is wholly in invitum in its relation to the tribunal by which the accused is to be tried. The leading case in the United States on the subject appears to be that of Cancemi v. Peo-ple" in which twelve jurors were impaneled for the trial, and during the trial the accused agreed that one juror might be withdrawn, and the trial proceeded with eleven jurors. It did so proceed, but the con- viction was held to be illegal, on the ground that the fixed number of jurors could not be waived. '1 his decision was based upon the ground, that the parties could not by consent alter the substantial constitution of the Court, and that the State had an interest in the preservation of the liberties and lives of its citizens, and would not allow them to be taken away without due process of law, even by the consent of those ac- cused of crime. Strong, J.,in delivering the opinion of the Court said : "The substantial constitution of the legal tribunal and the fundamental mode of its proceeding are not within the power of the parties The State, the public, have an interest in the preservation of the libenies and the lives of the citizens, and will not allow them to be taken away without due process of law ; ..... therigfbt of adefendnnfein a criminal prosecution to affect, by consent, the conduct of the Case .... should not be permitted to extend so far as to work radical changes in great and leading provisions as to the organization of the tribunals or tlie m ; >;ie of proceeding prescribed by the Constitution and the laws." He further said: ' ; A plea of guilty to any indictment, whatever may be the grade of the crime, will be received and acted upon if it is made clearly to appear tliat the nature and effect of it are understood by the accused. But when issue is joined upon an indictment, the trial must be by the tribunal and in the mode which the Constitution and laws provide, without any essential change. The public officer prosecuting for the people has no authority to consent to such a change, nor has the defend- ant. . . . The conclusion necessarily follows, that the consent of the plaintiff in error to the withdrawal of one juror, and that the remaining eleven might render a verdict, could not lawfully ba recognized by the Court, and was a nullity. If a deficiency of one juror might by waived, there appears to be no '-^ . - _ , , , * 3 Hiil r. People, 111 Mich 351., 4 * IS N. V. 128. 8. 267. WAIVER OP THE NUMBER OF JURYMEN. 33 good reason why a deficiency of eleven might not be ; and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and the trial committed to the Court alone. It would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the Constitution and laws establishing and securing that mode of trial, for the Court to allow of any number short of a full panel of twelve jurors, and we think it ought not to be tolerated." (B) (B) Similarly in State v. Mansfield, 4S Wagner, J., said : " The prisoner's consent cannot change the law. His right to be tried by a jury of twelve men is not a mere privilege ; it is a positive requirement of the law. He can unquestionably waive many of his legal rights and privileges. He may agree to certain facts and dispense with formal proofs, he may consent to the introduction oE evidence not strictly legal, or forbear to interpose challenges to the jurors ; bat he has no power to consent to the creation of a new tri- bunal unknown to the law to try his offence. The law in its wisdom has declared what shall be a legal jury in the trial of criminal cases ; and a defendant cannot be permitted to change the law and substitute another and a different tribunal to pass upon his guilt or innocence. The law as to criminal trials should be based upon fixed standards, and should be clear, definite and absolute. If one juror can be withdrawn, there is no reason why six or eight may not be, and thus the accused, through persuasion or other causes, may have his life put in jeopardy or be deprived of his liberty throush a body constituted in a manner unknown to the law. Aside from the illegality of such a procedure, public policy condemns it. The prisoner is not in a condition to exercise a free and indepen- dent choice without often creating prejudice against him." In Hill v. People, * 8 the Conrt said : "There would be great danger in holding it competent for a defendant in a criminal case, by waiver or stipulation, to giv* authority, whioh it could not otherwise possess, to a jury of less than twelve men, for his trial and conviction ; or to deprive himself in any way oE the safeguards which the Constitution has provided him, in the unanimous agreement of tw-jlve men qualified to serve as jurors by the general laws of the land. Let it once be settled that a defendant may thus waive th.s constitution il right, aud no one can foresee the extent of the evils whioh might follow. . . . One act oe neglect might be recognized as a waiver in one case, and another in another, until the constitutional safeguards might be substantially filtered away. The only safe course is to meet the danger in llmlne, and prevent the first step in the wrong direction. It is the d-ity of courts to s^e that the constitutional rights of a defendant in a criminal oaie shall not bs violated, however negligent he may be in raising the objection. It is in such cases, emphatically, that consent should not be allowed to give jurisdiction." In Territory v. Ah Wah, * 7 Wade, C. J., in delivering the opinion of the Court said: " A common law jury consists of twelve persons. Cana defendant," on his own motion change the tribunal and secure to himself a trial before a jury not authorized by and unknown to the law ? The law has established certain tribunals, with defined powers and forms of proceeding, for the trial of persons charged with crime. Security to the defendant and to the public is only found in a strict compliance with the law of the land. Jurisdiction comes by following the law. Disorder aud uncertainty follow a departure therefrom. Neither the prosecution nor the defendants, by any act of their own, oan change or modify the law by which criminal trials are controlled. If with the consent of the Court aud the prosecution, the defendant may have a trial with one juryman less than a constitutional jury, why with like consent might he not have a trial with one jurjman more than a constitutional jury ? If by his own act, the defendant might take oue from a lawful jury, we do not see why he might not add one thereto. In either case there would be failure of jurisdiction, because jurisdiction attaches and makes valid a venliot when rendered by a jury, and a jury is twelve men. ... In the absence of a statute, consent would not confer jurisdiction." * 41 Mo., 475. * 10 Mich., 357. *' 4 Mont., 149. 534 WAIVER OF THE NUilBEB OP JURYMEN". [S. 267. In Territory v. Ah Wa\, 48 during the progress of the trial, one of the jurymen was excused on account, of sickness in his family, and, thereupon, with the consent of the defen- dant, the trial proceeded to a final conclusion before the re- maining eleven jurors, who returned a verdict of murder in the first degree. It was held that the verdict was a nullity, and that the court erred in permitting the trial to proceed to a verdict, after the withdrawal of one of the jurors. Wade, C. J., in delivering the opinion of the court, observed that there did not seem to be any authority justifying a waiver of a full jury of twelve by the accused in a capital case ; and said: " Instances may be found in the books in cases of misdemeanours, and also, but more rarely, in cases of felonies, where it has been held that a defendant might waive his right to a jury of twelve and consent to be tried by a less number; but the weight of authority in cases of felony is clearly against the proposi- tion." It has been argued against this, and in favour of the recog- nition of the effect of consent in such cases, that it " is not inconsistent with any rule of law or with public policy. Nor does it tend to defeat public justice. On the contrary, it may tend to promote it, by facilitating the despatch of business in court, and preventing unnecassary and embarrassing delay." Thus in Com. v. Dailsy* it was said : " It may be important to the accused, for the preservation of evidence, and on various accounts, to have a speedy trial, and that where parties and their counsel have exercised their judgment in the conduct of the trial, as to what they will insist on and what they will waive, as they may safely be allowed to do, and have taken their chances on a verdict, it would be inconsistent with ordi- nary good faith and fair dealing for them to turn round and insist on legal exceptions, which they had pledged themselves to the court that they would not take. From an examination of the cases upon this subject, it must be concluded that the weight of authority is with the doctrine, that in prosecutions for crime, at least where the crime charged is other than mere misdemeanour, the defendant cannot waive his right to trial by a jury of twelve men, and be tried by a less number." The weight of authority, in cases of felony, is clearly against any right on the part of the accused to waive the full number of *" 4Mo.it.. 149. I * 12 Gush.. 80. S. 267.] . WAIVEH OF THE NUMBER OF JURYMEN. 535 The case generally cited in favor of the opposite view is that of Statz v. Kaufman, which has been followed in State v. Saclcett, 1 and in Avhich it was held, that upon a trial for a crime, the accused might waive his right to a trial by jury of twelve men, and with his consent might be tried before eleven jurors. Seevers, J., said : " The defendant may have consented to be tried by eleven jurors, because his witnesses were then present, and he might not be able to get them again, or that it was best he should be tried by the jury as thus constituted. Why should he not be permitted to do so ? We are unwilling to establish such a rule. It may be said that if one juror may be dispensed with, so may all but one, or that such trial may be waived altogether, and the trial had to the court. This does not necessarily follow." In support of this view, reference was made in the decision only to the cases of Com. v. Dailey ; Murphy v. Com.f&ndTyra v. Com., 3 which were all cases of misdemeanour, in respect of which a distinction is generally recognized. Seevers, J., observed, however, that in the first case, the fact of the offence having been a misdemeanour possessed no significance, and said: "The ruling is based on principle applicable to all criminal actions. We are unable to see how it is possible to draw a dis- tinction in this respect between misdemeanours and felonies, because the Constitution does not recognize any such distinction." Referring to the contrary cases, 4 he continued, " In neither of these cases was the question largely considered. Substantially, they all seem based on the thought that it would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the con- stitution and laws establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors, and, we think, ought not to be tolerated. This would have been much more convincing and satisfactory if We had been informed why it would be highly dangerous, and should not be tolerated, or at least, something which had a ten- dency in that direction. For if it be true, as stated, it certainly would not be difficult to give a satisfactory reason in support of the strong language used." The weight of authority clearly seems to be in favour of the view, that it is only in prosecutions for misdemeanour that the court may with defendant's consent proceed to try him 5 51 Towa, 578. 1 38 N. W. R , 773. 2 1 Mete., 1365. * ~2 Mute., 1. Cancemi v. People, 18 N. Y., 123. Allen r. State. 54 Ind.. 161. Bell v. State, 44 Ala., 530 WAIVER OF RULES FOR IMPANELLING JURY. [S. 268 with less than full number of jurors. 5 In Warwick v. State,* it was even held that where, iirfder a special statutory provision, misdemeanour cases might by agreement of the parties, be tried by a jury of less than twelve jurors ; a mere waiver of the requisite number by merely failing to object to less would not authorize a trial by less than twelve. A distinction similar to that taken in In re Staff 7 in regard to the waiver of a trial by jury, was taken in Murphy v. Com.,* in regard to prosecutions for misdemeanours punishable by fine only, because it is considered, that in the case of such misdemea- nours, the defendant may agree to be tried by a jury of not less than twelve persons, as nothing more " is involved in the issue of the case than is frequently involved in the decisions of actions in civil cases, and the citizen his an undoubted right to make any disposition of his nr.>ney or his property which is not prohibited by law." In Missouri, the reasoning in this opinion has been stated and endorsed, and it is said that " in prosecutions for misdemeanour, where the penalty imposed is simply a fine, the only contest is abjut money and property, aud the defendant may consent to waive some of the prescribed formulas of trial." a Waiver of formal rules for impanelling jury. 268. Merely formal rules for impanelling jury may, how- ever, be waived. In People v. Ransom, 10 it was held that non-compliance by the clerk to put the names of all the persons returned as jurors into a box, from which juries for the trial of issues were to be drawn according to the statute, was not a sufficient ground for setting aside a verdict, either in a criminal or civil case, where the court was satisfied that the party complaining had not and could not have sustained any injury from the omission. The trial in the case was for a capital offence, and after twenty-eight jurors had been called, eleven of whom were approved and sworn, and 17 peremptorily challenged, it was discovered that the ballot containing the name of a juror who had answered on the calling on the general panel, was not in the box containing the names of the jurors returned for the court, and which on search was found and put into the box, and drawn out of it by the direction of the court, and the jurors sworn to serve on the jury. The court held that the irregularity State v. Borowsky, 11 Nev., 119. 47 Ark., 5R8. 63 Wis., 285. * 1 Mete., 1365. 9 State v. MatisftoH, 41 Mo., 470. 10 7 Wend.. 417. S. 268.] WAIVER OP RULES FOR IMPANELLING JURY. 507 or neglect of the officer was not such as to entitle the prisoner to a new trial, it. appearing to the court that the omission to put the ballot into the box proceeded from neglect, and not from design. In Pierson v. People* 1 the only irregularity was, that of the three jury boxes required to be kept by the statute the second, which should have contained the names of all jurors who had attended a term of court and served, was not kept and, of course, not produced in court. The prisoner challenged the array of jurors, but after- wards withdrew it, and a jury having been then impanelled, the trial duly proceeded. It was contended afterwards that the chal- lenge could not be withdrawn, but the contention was overruled, and Earl, J., in delivering the opinion of the Court, said : " The objects of all the jury laws are to distribute the burden of jury service among all those liable to such service and to secure im- partial jurors of the requisite qualifications. To secure the first object, lists of jurors are required to be made and returned to the county clerk in each county every three years. The names thus returned are required to be put into a box, from which jurors for any term of court are required to be drawn, and when a juror has once attended and served, his name is not to be returned to that box, but is to be placed in another box, to the end that he may not be drawn for service again until all have been drawn from the box first named. The second object is attained by requiring that only persons of the prescrib- ed qualifications shall be returned for jurors, and that they shall be chosen by lot. Now all these substantial provisions were observed in this case. The jurors upon the array were all persons who had been returned as such by the proper officials. They all possessed the statutory qualifications, and they were chosen by lot. When these substantial conditions exist, the rest must generally- be matter of form, which can be arranged or waived by consent, tacit or expressed. Here the only irregularity alleged is that the second box was not kept, or brought into court. The fact that it was not kept was not known to the court at the time it made the order designating the box from which the jurors were to be drawn. In the exercise of its discretion, and to carry out the manifest purpose of the law, it ordered the jurors to be drawn from the first box. A court would not be expected to order jurors to be drawn from the second box, containing the names of those who had 11 79 N. Y.. 124. 68 538 WAITER OF RULES F0K IMPANELLING JUUT. [S- 268. once served, so long as there were sufficient names in the first box. It cannot, therefore, be inferred, if all the boxes had been kept and brought into court and the orders then made, that different jurors would have been drawn and summoned from those who were actually drawn and summoned. But even if it could be thus inferred, it cannot be denied that the persons empanelled to try the prisoners were jurors made so in the mode prescribed by law and possessing lawful qualification. If, therefore, there was any irregularity which would be ground of error, it was merely formal, affecting no public interest, trench- ing upon no public policy; and to hold that it could not be waived would be without precedent and against reason.'* It has often been held that even apart from consent, merely formal irregularities in empanelling the jury, which are not calculated to prejudice the parties, do not affect the validity of the verdict. S. 269.] ONUS PROBANDI AS TO CONSENT. 539 CHAPTER XIII. EVIDENCE OF CONSENT. 269. There are no special rules relating to the evidence of consent, which, generally speaking 1 , is Onusprobandi as to d Hke other fact. To discuss this consent mode of proof will involve a consideration of the general principles of the law of evidence, and attempt will therefore here bemadeonly to refer to a few points having special reference to the subject of consent. As a general rule, consent must be proved by the person who alleges and relies on its exist- ence. Speaking, however, of the cases, in which consent operates as a justification, Mr. Mayne observes " that every proper consent should always be presumed where the act is in itself proper and beneficial; as, for instance, a surgical opera- tion. And this is in accordance with the principles of the law of evidence, that innocence will always be presumed, and there- fore where the act is prima facie lawful, but may be unlawful by omitting certain precautions, it will be assumed that those precautions have been taken until tiie contrary is shown." 1 The Indian Evidence Act 2 provides, however, that'* when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same code, or in any law denning the offence, is upon him, and the court shall presume the absence of such circumstances." Under this provision, consent, when alleged as a justification or mitigation, will have to be proved by the person alleging it. The absence of consent, when alleged as a ground of aggravation of an offence, has, on a similar principle, to be proved on behalf of prosecution. 270. That principle lias no application however, to the cases in which the absence of consent is an Onu probandi as to essen ,j a i constituent of an offence, and in the absence of consent , . , . . ., c , , , e3 sential for an offence. vvhlch ll tnust therefore always be proved on behalf of the prosecution. InBrijBasi v. The Queen- Empress, 3 Sir John Edge, C. J., and Aikman, J., observe!, that " it is the first principle of criminal law that Mayne Com., Inrt. Pen. Code. 88. | S. 105. Act I. of 1872. s I. L. R. XIX. All., 74. 540 ONUS PROBANDI AS TO ABSENCE OF CONSENT. [S. 27O. where a statute creates a criminal offence the ingredients of that criminal offence must be strictly proved, and that where the doing of an act without consent or without authority is made a criminal offence, and the statute does not expressly put upon the accused the proof of such consent or authority, it is a necessary part of the case for the prosecution to negative by evidence such consent or authority." It is thus settled that in a prosecution for theft, it must be Affirmatively proved that the taking- was without the owner's consent. 4 Unless taking the property without the owner's con- sent is proved, it cannot be held that larceny lias been commit- ted. 5 The same has been held in regard to rape. In Georgia, it is an offence to permit a minor to play billiards without his parent's consent, and it lias been held 6 that the burden of proving the absence of consent is on the State. In Eex v. Allen, Rex v. Argent, and in Rex v. Chamberlain, all reported in Moody's Crown cases, 7 the indictment was for taking deer or fish without consent, and it was held that the onus of proving non-consent was on the prosecution. In British India, to sustain a conviction for the offence of house-trespass with intent to commit adultery with a woman, it is necessary to show that there has been no consent or connivance on the part of her husband to the trespasser having carnal in- tercourse with her. This was held in Brij Basi v. The Queen- Empress^ in which Sir John Edge, C. J., and Aikman, J., said : 'If Brij Basi had actually been caught in the act of sexual in- tercourse with the wife of Earn Gopal, assuming that he knew her to be Ram Gcpal's wife, the offence of criminal adultery would not have been made out without proof, that such sexual intercourse was without the consent and without the connivance of Ram Gopal. Brij Basi was convicted of a ho use. trespass in. order to commit a criminal adultery with the wife of Rarn Gopal. It was consequently necessary to support the prosecution to prove that if brij Basi had had sexual intercourse on that occasion with the wife of Ram Gopal, it would have been without Ram GopaFs consent or connivance. It was not even proved that Brij Basi had committed criminal trespass on this occasion. There would be no intent on his part to commit criminal adultery or to insult or annoy the owner * Kapal. Larceny, 180. 8 Garcia v. State, 26 Tex;., 209. State r. Morey, 2 Win., 40 1. Pollard v. State, 3 Iowa, 567. 6 Conyers v. State, 50 Ga., 103. 7 I. 15k 8 I. L. ft.. XIX A!!., 7-1. S. 271.] ONUS PROBANDI AS TO PERSON ALLEGING AFFIUMATIYE. 54} of the house, Ram Gopal, unless Brij Basi was there to commit criminal adultery with the wife of Ram Gopal, i.e., to have sexual intercourse with her without the consent and without the connivance of Ram Gopal. There could be no intent to insult or annoy Ram Gopal if Ram Gopal was consenting or conniving at the adultery, and there is nothing in this case to show \vhetheror not Ram Gopal was a consenting or conniving party." This is in accordance with the general principle of the Indian Law of Evidence that the burden of proof lies on that person who would fail if no evidence at all were given on either side. A particular form of that general principle, is the no less gene- rally recognized rule that every essential part of the offence must be proved on behalf of prosecution. 10 In Gonyers v. State> li McCay, J., in delivering the opinion of the Court, observed : "Undoubtedly the general rule is, that in criminal cases the burden of showing all the facts necessary to make out the defendant's guilt is upon the State. In rape, the proof must show that the act was against the will of the female; in robbery, that the taking was against the consent of the person robbed ; in larceny from the person, that the taking was without the knowledge of the possessor in the case; and in the various acts of trespass against property, as cutting wood, &c., on another's land, that they were without the owner's consent." 271. The contrary has been argued sometimes on the ground of the principle that the burden lies on Application of the the partv who asserts the affirmative of rule of onus probandi as the isgu ^ Th j g pr i nc i ple has no app li ca . to the person alleging , ,., r ,i ti, affirVnativp tlon j however, to a case like that of the me amriHuuve. . . absence ot consent. Ihis was well explain- ed in the case of Conyers v. State already cited, in which McCay, J.,said : "There is a class of negations which it is almost impos- sible to prove affirmatively. Where the field to be covered by the evidence is so broad as that the burden would be intolerable upon the public, to aiford the time necessary for hearing the proof, as where it is only possible to prove that one was not present, by examining a large number of persons who did not see him, or where the proof that one did not do a thing can only be established by proof following him from movement to move- ment, through a considerable time. But there are negations S. 102, Act I. of 1872. | 10 Elkins v. Stato. 13 O a ., 435. n 50 Ga., 103. 542 ONUS PBOBANDI AS TO PERSON ALLEGING NKttAUVK. [S. 272. that are just as easily proven as an affirmative, as where the negation depends upon a moment of time and a particular place, or is within the knowledge of a single person. In the former class, even the general rule that the prosecutor in criminal cases must prove all the ingredients of the crime, has, in some cases, been relaxed. As in prosecutions under the English Game Law?=, where one may kill ame if he has one of a large number of qualifications, it has been held that it was not necessary for the Crown to go to the expense and the public to suffer the incon- venience of proving the absence of each of the required quali- fications, especially (and this is perhaps the true point on which the exception turns) if the facts lie peculiarly in the defendant's knowledge And the Courts have not always kept in mind the distinction between cases when the negative is part of the description of the offence, and when it is by a provision or a subsequent section, or by a subsequent act. 13 The books are full of illustrations of the position we have asserted, to wit, that if in order to make the defendant guilty, it be necessary to show a negative, the burden of showing it is upon the State, 13 as when the defendant was indicted for keep- ing a greyhound, not being a person qualified. u In the same volume is a case for profane swearing, under the Act of 6 and 7 Wrn. III. The Act put a penalty of one shilling on a servant, and two shillings on every other person. The conviction was quashed, because it was not proven that the defendant was not a servant. See 10 Bast, 211, where it was held that the burden was on the Crown to show that the defendant had not taken the sacrament. In 5 Rich. 57, that a practicing physician had no license; that one was not qualified to vote." 15 272. The contrary has sometimes been held also on the ground that consent is a fact specially Application of the rule within the knowledge of the person of onus probandi as to rece i v ing and acting on it. This is the person alleging the . fe f negative. generally the case in prosecutions for doing an act which the statutes do not permit to be done by any person, except him who is duly licensed therefor, as for selling liquors, exercising a trade or profes- sion, and the like. Here the party licensed can immediately show the license without the least inconvenience ; whereas, if 18 12 Barb., 26. 3 Dev., 299. 8 B. Mon., 342. 9 Mftto., 28C>. 34 Me., 293. 1 May r. State, 4 Ala. 1 Sfcr ti6. 8 273-] EVIDENCE OF ABSENCE OP CONSENT. 543 proof of the negative were required, the inconvenience would be very great. In Massachusetts, there is a special provision of the law, throwing the burden of proving the license on the person gelling liquor under it. Even in other states it has often been held on an indictment for retailing spirituous liquors without license that if the sale of the liquors is proved, the prosecution need not prove the absence of the license, but the accused will be convicted unless he proves the existence of the license as by his plea of non-guilty he affirms its existence. A decision to this effect in Sharp v. Stale, 16 has been justified on the following ground : " The license is a written authority to the dealer to sell, and the presumption is that he has it in his pos- session. It is peculiarly within his knowledge. The negative cannot be shown conclusively by the State. It could only be proven that no such license was recorded ; but the defendant might have the license and be not guilty, though the license was not recorded. All the proof in the power of the State would be inconclusive, to wit, that no such license was recorded. The license is in writing, and cannot be proven by parol, and it is in the defendant's possession, if it exists, and on this ground there are many cases making this special crime an exception to the general rule." This principle was not held to apply in Gonyers v. State as there, the consent of the parent was not required by the statute to be in writing, and, therefore, it did not, as in the case of the license to sell, lie peculiarly within the knowledge of the defendant, the fact that consent was not given being as well known to the parent or guardian as to the accused. 273. Absence of consent maybe proved by any evidence, either direct or circumstantial. As a rille no ol) J ection can betaken> the latter, on the ground that the ^former is not produced; though in practice there may be some difficulty in accepting circumstantial evidence as true, unless there is a reason for not producing the direct evidence. The question lias generally arisen in connection with larceny and theft. In some early cases, it appears to have been held even in England, that to prove that consent was not given, the person said to have given the same must first be called. 18 This was, however, not considered necessary in Rex v. Allen, and Rex v. Chamberlain. " 17 G-a., 290. I i Rex v. Rodgers, 2 Campb., 654. ' 50 Oa., 103. i p 1 Mood. C. C., 151. 544 EVIDENCE OF FEMALE'S PRIOR CONNECTION WITH ACCUSED. [g. 274. The rule in the United States also, except in Texas and a few other Stafes, M) is the same, and the absence of consent may be proved by circumstantial evidence alone. 25 Thus, it is not necessary to prove from the person having possession of the goods stolen that they were taken without the owner's consent, as that may be proven by others having a knowledge of the facts. 23 It is generally settled, that the fact that the owner caused search to be made for the property is a cogent circumstance to show the want of his consent to the taking. 27 At a trial for larceny of money by trick, the testimony of the complainant as to what was said and done at subsequent interviews with the accused by appointment, at which he proposed ways in which a return of the money could be secured, is admissible to show that com- plainant had not intentionally parted with his money or the title to it. 28 274. In cases of indictment for rape or assault with intent to commit rape on a female, the circum- Eyidence in rape cases s t an ce of his having had connection with of females prior con- t ,1 t -. i j nection with accused. her on other occasions is material and may be proved. This is on the ground that a woman who already has had connection with a man is more likely to yield to his overtures and less likely to offer resis- tance to his act on another occasion, than one who never had anything to do with him. In Reg. v. Cockcroft, 30 Willes, J., held that she could be questioned as to the particular acts of (A) In these States, it is still held that the owner's absence from the witness-stand must be accounted for before the production of circumstantial evidence. 20 If the owner is known, and his attendence can be procured, his testimony that the property was taken from him without his consent, is then considered indispensable to a conviction for larceny ; 2 1 and the want of the owner's consent can be shown by circumstantial evidence, only when it appears that the owner's evidence on the point is not obhainsible. 22 Thus in Daris v. State, 23 on a trial for theft of boots from a store, it was held that in order to prove that the boots were taken without the consent of the owner, the State could not prove an altercation between the clerk of the store and the accused at the time the boots were taken, by witnesses who were present and heard the altercation, and that they must call the clerk in charge of the stores. Even in Texas, it has, however, been held that an objection to the circumstantial evidence on the ground that the owner himself has not been called cannot be taken, on appeal, unless it was taken at the trial. 2 * 20 Jackson r. State, 1 Tex. App., 363. I 2 * Stewart v. State, 9 Tex App., 321. 21 Wilson r. State. 12 Tex App., 481. I 2S McMahon r. State, 1 Tex. App., 103 State r. Moon, 41 Wis., 684. Clayton r. State, 15 Tex. App., 34S. Love r. State, 15 Tex. App., 663. 23 37 Tex., 277. Schultz v. State, 20 T>x. App., 308. 2(i People r. Jacks, Tfi Mich., 218. 2 ? Rains r. State, 7 Tex. App., 588. 22 Consent to one is not consent to another ... ... ]U7 Identity of an how far affected by difference of its sub- jective and objective incidents .... ... ... ... 200 Consent to an is to the as usually done... ... ... 210 Consent to an is not consent to all the consequences of the- 211 Consent must be to a future ... ... ... ... 213 Consent must exist at the time of the ... ... ... 219 Criminal done to a person after causing intoxication to him is not excused by that person's consent ... ... 336 Consent by an intoxicated person does not excuse crimi- nality of done with a knowledge of the intoxication ... 337 Penality of merely known as likely to cause death not affected by consent... ... ... ... 406 Greater effect of consent on done for benefit of person giving consent ... ... ... ... ... ... 422 done for benefit of person giving consent to be justified must be done in good faith ... ... ... 423 Extent of justification by consent in case of for benefit of person giving consent ... ... ... ... ... 424 for a person's benefit not justified if consent is not given to them by him ... ... ... ... ... 425 What causing harm justified when done without con- sent 428 Consent is not justification of constituting other offences irrespective of harm caused by them to person giving consent .., ... ... ... ... ... ... 432 Evidence may be given of individual of unchastity with persons other than accused ... ... ... ... 546 Evidence may be given to contradict complainant's denial as to individual ... ... ... ... ... ... 551 Complainant may .be questioned as to individual of connection with other persons ... ... ... ... 550 Act XLV of I860, vide Penal Code, Indian. XXIII of 1871, vide Pensions Act. I of 1872, vide Evidence Act, Indian. IX of 1872, vide Contract Act, Indian. Ill of 1873, vide Civil Courts Act, Madras. XV of 1877, vide Limitation Act, Indian. I of 1879, vitlc Stamp Act, Indian. ~ XIII of 1879. vide Civil Courts Act, Oudli. X of 1882, vide Criminal Procedure Code, Indian. XIV of 1882, vide Civil Procedure Code, Indian. XV of 1882, vide Presidency Small Cause Courts Act. XVII of 1882, vide Deccan Agriculturists' Relief Act. XII of 1887, vide Civil Courts Act, Bengal, N -W.-P., and Assam. ADULTERY, Consent in , ... 363 IKDKX 557 AFFIRMATIVF,, Application of rale of onus probandi as to person alleging the ... ... ... ... ... ... 541 AGE, Restriction of the exemption from liability in regard to. .............. ... ...... 372 Limitation of the of consent for homicide in India ... 440 AGENT, Delivery by an to a wrong person by mistake ... 253 AGGRAVATED, Consent in cases of assault ... ... ... 355 AGGRAVATION, Absence of consent is of offences for which consent is not essential ... ... ... ... ... 458 AGREEMENT, Accused may bind himself by even in criminal proceedings ... ... ... ... ... ... 52 1 ALIENAGE, as an incapacity to contract ... ... ... ... ]34 APPEALS, Consent cannot give jurisdiction over ... ... 463 APPEARANCE, Waiver of defect of personal jurisdiction by ... 483 APPROVAL, Consent distinguished from subsequent ... ... 216 Even not amounting to consent is a mitigation of punish- ment ... ... ... ... ... ... ... 459 ARMS, Manty exercises with how far allowed ... ... ... 421 Homicide in a premeditated fight between factions bearing is murder... ... ... ... ... ... ... 450 ASLEEP, No consent by a person ... ... ... ... 23 ASSAULT, Absence of consent essence of ... ... ... ... 4, 352 Consent obtained by fraud negatives ... ... ... 289 Effect of minor's consent on indecent in common law ... 312 Special legislation to make indecent against minors an offence in spite of consent... ... ... ... ... 316 Consent in ... ... ... ... ... ... ... 852 Consent in in disturbance of public peace ... ... 353 Consent in case of aggravated ... ... ... ... 355 ATTEMPT, Consent immaterial in case of an to commit rape on minors ... ... ... ... ... ... ... Penality of of suicide Penality of of suicide in India ATTRIBUTES, Knowledge of of an act how far necessary to consent to the act ... ... ... ... ... ... 20 BARRiSTER-AT-LAw,Profession of a as incapacity to contract. 135 BELIEF, Mere as to absence of consent not equivalent to its absence ... ... ... ... ... ... ... 233 of consent how frvr deemed equivalent to consent in India ..................... 235 BENEFIT, Greatereffect of consent on acts done for of person giving consent ... ... ... ... ... ... ... 422 Acts done for of person giving consent to be justified must be done in good faith .,. ... ... ... 423 Extent of justification by consent in cnso of acts for of person giving consent ... ... ... ... ... 424 558 INDEX PAGE BENEFIT continued. Acts for a person's not justified if consent not given to them ... ... ... ... ,.. ... ... 425 BODILY, Consent is ground of mitigation of punishment in case of injuries ... ... .. ... ... ... 457 CIVIL CODE, BELGIC, S. 1112 ............... 41 CIVIL CODE, CALIFORNIA, S. 1575 ... ... ... .. ... 56 S. 6579 ............... 91 CIVIL CODE, DAKOTA, S. 890 ............... 91 CIVIL CODE, EGYPTIAN, S. 195 ............ 41,71 206 ............ ... 117 207 ............... 117 CIVIL CODE. FRENCH, S 1109 ............ 35, 106, 107 1110 ......... 70, 76, 81, 106, 107 1111 ............... 41,49 ............... 64 1116 ............... 64 1117 ............... 64 1124 ............... 135 1125 ....... , ....... i:j 5 '1131 ............... 106 1235 ............... ICG 1356 ............... 106 1377 ............... 117 2052 ............... 106 CIVIL CODE, GERMAN, S. 105 ............... 133 119 ............... 71 120 ............... 71 CIVIL CODE, ITALIAN (Codies Civile), Art. 1106 ......... 135 1107 ......... 135 1108 ......... 35 1109 ......... ]06 H10 ...... 70, 7d, 81 1111 ......... 65 1112 ......... 36,41 1115 ......... 65 1146 ......... 117 CIVIL CODE, LOUISIANA, Art, 1123 ...... 70 1796 ........ ; .;; ]35 1324 ............ 88 1*25 ...... 88 3826 ...... 89 1827 ... 89 INDEX 559 PAGE CIVIL CODE, LOUSIANA, continued. Art. 1834 76 1836 75 1838 76 1840 77 1841 73 184:3 85 1844 85 1845 85 1846 92,99 1851 41 1856 54 1857 54 1881 ... 62 CIVIL CODE, SPANISH, S. 1263 133 1266 70, 76 1267 36,41 CIVIL COURTS ACT, Bengal, N.-W.-P. and ASSAM, S. 33 ... 479 Madras, S. 17 479 Oudh, S. 23 479 CIVIL PROCEDURE CODE, INDIAN, S. 20 474 424 498 433 498 578 5il CIVIL, Right of waiver unlimited in proceedings ... ... 510 COERCION, Vide Duress. COMPULSORY, Consent in offences relating to labour ... ... 358 CONDITIONS, ^Vaiver of of exercise of civil jurisdiction ... 498 Waiver of of exercise of criminal jurisdiction ... ... 504 CONFINEMENT, Consent in wrongful ... ... ... ... 356 CONSENT, Absence of , vifle Absence. to an act, vide Act. by drunken person, vide Drunkenness, Effect of duress on , vide Duress. Effect of fraud on , vide Fraud. caused by fear, vide Fear. as to harm, ride Harm. Homicide by , vide Homicide. -as to hurt, vide Hurt. may be implied, vide Implied. Effect on of intoxication, vide Intoxication. cannot give Jurisdiction, vide Jurisdiction. caused by misconception, vide Misconception. by a minor, vide Minor. as a ground for mitigation of liability, vide Mitigation. 5GO INDEX, PAGE CONSENT continued. Effect of Mistake on , vi in other offences against property ... ... ... 347 in rape ... ... ... ... ... ... ... 349 in assault ... ... ... ... ... ... ... 352 in assaults in disturbance of public peace ... ... 353 in case of aggravated assault ... ... ... ... 355 in wrongful confinement ... ... .. ... ... 356 in offences relating to compulsory labour ... ... 358 in slavery ... ... ... ... ... ... ... 359 in other offences affecting personal freedom ... ... 360 in abduction ... ... ... ... ... ... 361 in kidnapping ... ... ... ... 361 in adultery... 363 to miscarriage ... ... ... ... ... ... 432 Offences in which has no operation... ... ... ... 368 as a ground of exemption from criminal liability ... 369 Principle of exemption from liability on ground of ... 371 Restriction of the rule as to exemption from liability on the ground of ... ... ... ... ... ... 372 Penality even of acts merely known as likely to cause death not affected by 40G justifies every hurt other than grievous ... ... ... 415 Greater effect of on acts done for benefit of person giving 422 Extent of justification by in case of acts for benefit of person giving ... ... ... ... ... ... 424 Acts for a person's benefit not justified if not given to them by him... TT. ... ^.. ... ... ... 425 Guardian's equivalent to one's own ... ... ... 42(5 Guardian's power of not co-extensive with one's own power ... ... ... ... ... ... ... 427 Restrictions on the exercise of guardian's power 'of ... 427 is not justification for acts constituting public offences... 431 is not justification for acts constituting other offences irrespective of harm caused by them to person giving 432 Limitation of the age of for homicide in India ... ... 440 Proposed English legislation in regard to homicide by ... 441 Onus probandi as to ... ... ... ... ... ... 539 Onus probandi as to absence of when essential for an offence ... ... ... ... ... ... ... 539 Evidence of absence of ... ... 543 502 1XDKX. PAGE CONSEQUENCES, Consent to natural and contemplated of act implied from consent to that act ... ... ... ... ... 101 Recognition in law of contracts of the implied consent to 163 Recognition in law of torts of the implied consent to ... ] 64 Consent to an act is not consent to all the of that act ... 2) 1 CONSTRUCTIVE, Implied consent distinguished from consent ... 150 CONTRACT, M-stake even of one party may prevent formation of ... 68 Mistake as to the parties to the ... ... ... ... 75 Mist;\ke as to the identity of the object of ... ... 77 Mistake as to the existence of the object of ... ... 78 Mistake as to the substance of the object of ... ... 80 Mistake as to the motives for the ... ... ... ... 87 Personality of parties how far essential to ... ... 75 Absence of free and fair consent makes only voidable ... Cl Subjective incapacity to consent affects as being incapacity to 132 Operation of consent on ... ... ... ... ... 1 Consent in law of ... ... ... ... ... ... 21 In consent not free or fair may be consent ... ... '33 Consent required to be free and fair for valid ... ... 35 Consent may be implied in ... ... ... ... 143 Recognition in law of of the implied consent to conse- quences ... ... ... ... ... .,. ... 1C3 Effect of duress on , vide Duress. Effect of fraud on , vide Fraud. Effect of mistake on , vide Mistake Effect of undue influence on , viile Undue Influence. CONTRACT ACT, INDIAN, S. 9 148 10 35,136 11 137 12 134 J-* 35 ?5, 54 16 54, 57 61 17 Expl 145 18 61 19 62 20 71, 78,88 21 91 62 2 63 ... 3 72 117 188 176 CO-OPERATING, Consent to an act not implied by encouraging or in it with a view to discover the doer 185 t INDEX. 563 PAGE COUNTY COURTS ACT, 1883 (English), S. 61 461 64 4(30 74 474 114 407 CRIMES, Absence of consent essence of most private ... 12 CRIMINAL Liability, vidf Liability. Operation of consent in law... ... Exact character of the operation of consent in law act done to a person after causing intoxication to him is not excused by that person's consent ... ... ... 336 Waiver of irregularity of initiative process in pro- ceedings ... ... ... ... ... ... ... 494 "Waiver of conditions of exercise of jurisdiction... ... 504 Right of waiver limited in proceedings ... ... ... 513 Waiver of rights in proceedings ... .., ... ... 514 Accused may bind himself by agreement in proceedings. 524 CRIMINAL CODE, CANADA, S. 266 ]40, 425 CRIMINAL LAW, AMENDMENT ACT, 1885 (English), S 3 335 4 307 5... 307, 328 ; 337 CIUMIXAL PROCEDURE CODE, INDIAN 8,132... ... ... ... 505 191 ., 483 ]95 505, 506, 508 196 505, 506, 508 197 505, 506, 507, 508 198 218 199... 218 204 494 247 218 248 218 324 523 339 ... 508 454 477 531 475, 523 532 507, 523 535 523 536 530 537 506, 508,523 555 479 CRIMINALITY, Consent by an intoxicated person does not excuse of act done with a knowledge of the intoxication ... 337 CRIMINAL LAW, Consent distinguished from free consent in ... ... 138 Consent may be implied in ... ... ... ... ]<19 Consent caused by fear is not consent in ... ... 2-^7 Consent caused by misconception of fact is not consent in 237 561 INDEX. PAGE CRIMINAL LAW continued. Consent of incompetent person not sufficient in ... ... 304 Effect of mistake on consent in English ... ... ... 249 Effect of fraud on consent in ... ... ... ... 273 DEATH, Penalty even of acts merely meant as likely to cause not affected by consent ... ... ... ... ... 406 Deccan Agriculturist's Relief Act, S. 47 ... ... ... ... 500 DELIVERY, Possession may be transferred by mere physical 126 DEPENDENT, Fear may be result of one's position ... ... 245 DISQUALIFICATION, Common law did not recognize unsoundness of mind as of consent ... ... ... ... ... ... ... 321 Waiver of of a judge at Common law ... ... ... 477 No waiver of statutory of a judge,.. ... ... ... 479 DOCUMENTS, Mistake as to legal effect or construction of ... 101 DRUGGING, Sexual intercourse with a female by her into intoxication is not rape though punished as such ... 334 DUEL, How far homicide in a is murder ... ... ... 402 Homicide in a is a mitigation of offence of murder in India... ... ... ... ... ... ... ... Homicide in a is only culpable homicide in India Unsatisfactory effects of treating homicide in a as murder. Attempts 'in English law to reduce homicide in a to murder ... ... ... ... ... ... ... 446 General concensus against treating homicide in a as murder ... ... ... ... ... ... ... 448 DURESS, as affecting freedom of consent ... ... ... ... 35 General signification of ... ... ... ... ... 36 Nature of threats constituting ... ... ... ... 38 Extent of fear required to constitute ... ... ... 39 Witholding possession of goods, how far in English Law. 41 of goods in the United States ... ... ... ... 43 In United States, lawful imprisonment if malicious may constitute ... ... ... ... ... ... ... 50 Threats of prosecution may constitute ... ... ... 53 Illegality of act or threat not necessary for in India ... 54 Fear may be caused by ... ... ... ... ... 242 EFFECT, Mistake as to legal or construction of documents .,. 10 J ENCOURAGING, Consent to an act not implied by or co- operating in it with a view to discover the doer-.. ... 185 E3KOR, Vide Mistake. in Corpore ... ... ... ... ... ... ... 77 in Ostatira 77 in Materia ... ... ... ... ... ... 80 iu Substanfia ... ... ... ... ... ... 80 concerning essential quality of object of agreement... 84 INDEX. 565 PAGE continued. Mistake distinguished from and ignorance .. .... 66 Fraud vitiates consent merely as an ... ... ... 293 ESSENTIAL, Error concerning quality of object of agreement ... 84 ESTOPPEL, Consent distinguished from ... ... ... 18 from plea of jurisdiction ... ... ... ... 466 EVIDENCE, Waiver of incompetency of ... ... ... 528 of absence of consent ... ... ... ... ... 543 in rape cases of female's prior connection with the accused .... ... ... ... ... ... ... 544 of female's character for unchastity on charge of rape ... 545 may be given of individual acts of unchastity with persons other than accused ... ... ... ... ... ... 546 may be given to contradict complainant's denial as to individual acts ... ... ... ... ... ... 551 EVIDENCE ACT, INDIAN, S. 102 541 105 539 120 .., 528 122 529 m ... 529 126 529 127 529 128 529 EXEMPTION, from criminal liability, vide Liability. Waiver of personal from jurisdiction ... ... ... 476 EXERCISES, Manly with arms how far allowed ... ... . t , 421 EXPRESSION, Necessity of the of consent... ... ... ... 143 The of consent though in agreement is not identical with consent .... ... ... ... ... ... ... 143 EXTORTION, Consent in 360 FACILITIES, Consent to an act not implied by providing for it by laying traps ... ... ... ... ... ... 179 FACT, Nature of mistake of which may affect consent ... 69 Mistake of law distinguished from mistake of ... ... 93 Consent caused by misconception of is not consent in criminal law... ... ... ... ... ... ... 237 FEAR, Extent of required to constitute duress ... ... 39 Consent caused by is not consent in criminal law ... 237 Knowledge by person acting on consent of its having been caused by ... ... ... ... ... ... ... 239 may be caused by duress ... ... ... ... ... 242 may be result of one's dependent position ... ... 245 Character of the injury causing-- ... ... ... ... 246 must be of some harm other than that contemplated to result from act consented to ... ... * 247 566 .IXOKX. TAG?] FEMALE, Married condition of cause of incapacity to contract. loo FOKCE, Cases against conviction for rape often turned on supposed necessity of for that offence ... ... ... 280 Signification of extended constructively ... ... ... 281 never deemed to include mere fraud ... ... ... 283 Substitution of minority for in rape ... ... ... 307 Constructive extension of in cases of minority ... ... 308 Causing intoxication in order to get consent is equivalent to causing ... ... ... ... ... ... ... 330 Effect of spiritual on consent ... ... ., ... 339 FOREIGN, Mistake of law of a country is mistake of fact ... 91 Forfeiture Act, 1870, S. 1 383 General notion of as affecting freedom of consent .,. 57 in English Law ... ... ... ... ... ... 59 in Indian Law ... ... ... ... ... ... 60 Effect of on consent in criminal law ... ... ... 273 negatives offences of which absence of consent is essential constituent ... ... ... ... ... ... ... 274 Force never deemed to include mere ... ... ... 233 Penality of intercourse obtained by ... ... ... 286 Consent obtained by negatives rape chiefly under special legislation 288 Consent obtained by negatives assault ... ... ... 289 ' vitiates consent merely as an error ... ... ... 293 Consent obtained by does not affect abduction ... ... 294 How far consent obtained by is consent in theft cases ... 297 How far consent to entrance obtained by is consent in house-breaking ... ... ... ... ... ... 300 FREE, Absence of and fair consent makes contract only voidable , 61 Consent distinguished from consent in torts ... ... 137 Consent distinguished from consent in criminal law ... 138 Consent distinguished from consent in Indian Penal Code... .!" 141 FREEDOM, Duress as affecting of consent ... ... .... ... 35 Undue influence as affecting of consent ... ... ... 55 Fraud as affecting of consent ... ... ... ... 57 Consent in other offences affecting personal ... ... 360 FUNDAMENTAL QUALITIES, Mistake as to nature or of subject- matter ... ... ... ... ... ... ... 84 GOOD FAITH, Acts done for benefit of person giving consent to be excused must be done in ... ... ... ... 423 GOODS, Duress of in the United States ... ... ... 43 GUARDIAN, Consent of equivalent to one's own consent ... 426 Power of consent of not co-extensive with one's own power ... ... ... ... ... ... ... 427 IXDKX. 507 PAGE G TI AKDUN continued. Restrictions on the exercise of power of consent of ... 427 HARM, Consent must be of person to whom is caused ... 222 Fear must be of some other than that contemplated to result from act consented to ... ... ... ... 247 Restriction to the exemption from liability in regard to the nature of caused ... ... ... .. ... 373 to one's life among ancients ... ... ... ... 375 Influence of Church and State on to one's life ... ... 376 Taking risk of contrasted with consent to suffer ... 417 What acts causing excused when done without consent... 4^8 Restriction on the power of causing without consent ... 430 Consent is not justification of acts constituting other offences irrespective of caused by them to the person giving consent ... ... ... ... ... ... 432 HOMICIDE, by consent is real ... ... ... ... ... ... 393 Objections to the treatment of by consent as murder ... 395 General concensus as to peuality of by consent ... ... 400 How far in a duel is murder ... ... ... ... 402 Distinction between suicide and of consenting person ignored in England ... ... ... ... ... 391 by consent punishable in India ... ... ... ... 405 Consent as a ground of mitigation in case of ... ... 435 in a duel is a mitigation of offence of murder in India ... 438 Limitation of the age of consent for in India .,. ... 440 Proposed English legislation in regard to by consent ... 441 Burning the tiati is only culpable ... ... ... ... 443 in a duel is only culpable in India ... ... ... 444 Unsatisfactory effects of treating in a duel as murder ... 445 Attempts in English Law to reduce in a duel to murder. 446 General concensus against treating in a duel as murder... 448 in a premeditated fight between armed factions is murder ... ... ... ... ... ... ... 450 HOUSE-BREAKING, How far consent to entrance obtained by fraud is consent in ... ... ... ... ... 300 HURT, Penality of causing to one's self... ... ... ... 408 Voluntary causing of to another as affected by his consent ... ... ... ... ... ... ... 409 Consent justifies every other than grievous ... ... 415 Even grievous justified in certain cases by consent ... 416 IDENTITY, Mistake as to the of the object of the contract ... 77 Mistake as to the of person ... ... ... ... 75 Mistake as to the motive confused with mistake as to ... 87 ImocY, Effect of on consent in the United States ... ... 324 IGNORANCE, Mistake distinguished from error and ... ... 66 of luw no excuse 90 563 PAGE ILLEGALITY, of act or threat not necessary for duress in India ... 54 IMPLIED, Consent may be ... ... ... ... ... ... 145 Consent may be in contracts ... ... 148 consent distinguished from constructive consent ... ... ]50 consent distinguished from non-resistance... ... ... 152 Consent to the doing of an act not from an obligation to do the act ... ... ... ... ... ... ... 159 Consent to natural and contemplated consequences of an act from consent to that act ... ... ... ... 161 Recognition in law of contracts of consent to con- sequences ... ... ... ... ... ... ... 163 Recognition in law of torts of consent to consequences. 164 Consent to everything necessary for doing an act from consent to that act ... ... ... ... ... ... 176 Consent not from non-prevention ... ... ... ... 176 Consent to an act not by providing facilities for it by laying traps... ... ... ... ... ... ... 179 Consent to an act not by creation of opportunity for it ... 183 Consent to an act not by encouraging or co-operating in it with a view to discover the doer ... ... ... 185 Consent to an act by inducing a person to do it ... ... ]85 Consent to an act by soliciting a person to do it ... ... 187 IMPOSSIBILITY, of performance of contract prevents formation of contract ... ... ... ... ... ... ... 79 IMPRISONMENT, In United States lawful if malicious may consti- tute duress ... ... ... ... ... ... ... 50 INCAPACITY, Subjective to consent affects contract as being to contract ... ... ... ... ... ... ... 132 INCIDENTS, Consent to an act does not involve knowledge of its non-essential ... ... ... ... ... ... 28 INCOMPETENCY, Waiver of of evidence ... ... ... ... 528 INCOMPETENT, Consent of person not sufficient in criminal law... 304 INDUCING, Consent to an act implied by a person to do it ... 185 INJURY, Consent does not affect public ... ... ... ... 431 Character of the causing fear ... ... ... ... 246 INSANITY, Test of as incapacity to contract ... ... ... 134 INSTITUTICN, Waiver of the irregularity of the first of proceed- ings in a court not having jurisdiction ... 491 INTERCOURSE, Sexual with minor's consent punishable even outside England 309 Minor's consent to sexual not consent ... ... ... 310 Sexual with a female by drugging her into intoxication is not rape though punished as such ... ... 334 INTOXICATION, as a vitiating cause of consent ... ... ... ... 329 Causing in order to get consent is equivalent to force ... 330 INDEX. 6C9 PAGE INTOXICATION continued. Effect on consent of causing ... ... ... ... 331 Sexual intercourse with a female by drugging her into is not rape though punished as such... ... ... ... 334 Criminal act done to a person after causing to him is not excused by that person's consent ... ... ... ... 336 Consent by an intoxicated person does not excuse crimi- nality of act done with a knowledge of the ... ... 337 Recognition in India of as vitiating consent ... ... 338 IRREGULARITY, Waiver of in initiating proceedings ... ... 489 Waiver of the of the first institution of proceedings in a court not having jurisdiction ... ... ... ... 491 Waiver of of initiative process in criminal proceedings ... 494 JUDGE, Waiver of disqualification of a at common law ... ... 477 No waiver of statutory disqualification of a ... ... 479 JURISDICTION, Consent cannot give ... ... ... ... ... 460 Consent cannot give over subject-matter ... ... ... 462 Consent cannot give over appeals ... ... ... ... 463 Estoppel from plea of ... ... ... 466 Waiver of defect of other ... ... ... ... ... 470 Waiver of defect of local ... ... ... ... ... 473 Waiver of defect of over person ... ... ... ... 476 Waiver of personal exemption from ... ... ... 476 Waiver of defect of personal by appearance ... ... 483 Pleading after objection to not a waiver of its absence ... 486 Waiver of conditions of exercise of civil ... ... ... 498 Waiver of conditions of exercise of criminal ... ... 504 JURY, Waiver of right of trial by ... ... ... .., ... 530 Waiver of the number of men ... ... ... ... 531 Waiver of formal rules for empanelling ... ... ... 536 JUSTIFICATION, Acts done for benefit of person giving consent to find- must be done in good faith ... ... ... ... 423 Extent of by consent in case of acts for benefit of person giving consent ... ... ... ... 424 What acts causing harm find when done without consent. 425 Consent is not of acts constituting public offences... ... 431 Consent is not of acts constituting other offences irrespective of harm caused by them to person giving consent ... ... ... ... ... ... ... 432 KIDNAPPING, Consent in ... ... ... ... 361 KNOWLEDGE, No consent to an act without thereof ... 19 of attributes of an act how far necessary to consent ... 20 Consent to an act does not involve of its non-essential incidents ... ... ... ... ... ... ... 28 of character of an act not necessary for consent to it ... 30 570 INDEX. TAOE KNOWLEDGE continued. No consent if mind incapable of ... ... ... ... 32 No consent where mind is incapable of operation required for 32 Consent must have come to the of the doer of the act ... 231 by a person acting on consent of its having been caused bjfear 239 by person acting on consent of its having been caused by misconception ... ... ... ... ... ... 239 Consent by an intoxicated person does not excuse criminality of act done with a of the intoxication ... ... ... 337 LAKCENY, Effect of mistake on consent in cases ... ... ... 250 How far receiving of a thing given by mistake as to motive is 262 No if person receiving shared giver's mistake at time of receipt 267 No if person receiving was not aware of giver's mistake at time of receipt ... ... ... ... 273 Consent in ... ... ... ... ... ... ... 344 LAW, Effect of mistake of on consent, vide mistake. Mistake of distinguished from mistake of fact ... .. 93 Action of Courts oi' Equity in regard to mistake of ... 98 Mistake of well-settled principles of ... ... ... 103 Recovery of money paid under mistake of * ... ... 113 LIABILITY, Consent as a ground of exemption from criminal ... 369 Principle of exemption from on ground of consent ... 371 Restriction of the rule as to exemption from on the ground of consent ... ... ... ... ... .. ... 372 Restriction of the exemption from in regard to the age . . . 372 Restriction of the exemption from in regard to the nature of harm caused ... .. ... ... ... ... 373 Consent as a ground for mitigation of ... ... ... 434 LIFE, Harm to one's among ancients ... ... ... ... 375 Influence of church and state on harm to one's ... ... 376 Immunity from punishment of taking 1 one's vide suicide* LIMITATION ACT, INDIAN, S. 4 ... 500 LOCAL, Waiver of defect of jurisdiction ... ... ... 473 Materia, Error in ... >.. ... ... ... ... 80 MATRIMONIAL CAUSES ACT 1857, S. 31 .., ,.. ... ... 364 MINORITY, Legal ... ... ... ... ... ... 134 as a ground of incapacity to contract ... ... ... 136 Substitution of for force in rape ... ... ... ... 307 INDEX. 57 1. 5PAGK MINORS. Statutory protection of in regard to rape ... ... ., 306 Sexual intercourse with with consent punishable even outside England ... ... ... ... ... ... 309 Consent of to sexual intercourse not consent ... ... 310 Consent immaterial in case of an attempt to commit rape on 311 Effect of consent of on indecent assault in common law ... 312 Special legislation to make indecent assault against an offence in spite of consent ... ... ... ... ... 316 Attempted extension by analogy of rules concerning to persons of unsound mind ... ... ... ... ... 325 MISCARRIAGE, Ccnsent to ... ... ... ... 432 MISCONCEPTION, Consent caused by of fact is not consent in criminal la w ... ... ... ... ... ... ... 237 Knowledge by a person acting on consent of its having been caused by ... ... ... ... ... ... ... 2'39 Scope of ... ... 248 MISTAKE, General effect of on consent ... ... ... .,. 65 distinguished from error and ignorance ... ... ... 66* even of one party may prevent formation of contract ... . 68 Nature of facts of which may affect consent ... ,,. 69 as to the nature of transaction ... ... ... ... 72 as to parties to the contract ..,, ... ,., .,. 75 as to person ... ... ... ... ... ... ... 76 as to individuality of a party ... ... ... ... 76 as to personal quality of a party ... ... ... .,, 76 as to legal quality of a party ... ,,. ... ... 77 as to identity of the object of contract ... ... ... 77 as to existence of the object of contract ... ... ... 78 as to continuance of proprietory right in object of contract ... ... ... ... ... ... ... 79 as to substance of the object of contract ... ... ... 80 as to substance in English law ... ... ... ... 82 as to the nature or fundamental qualities of subject- matter ... ... ... ... ... ... ... 48 as to quantity ... ... ... ... ... ... 87 as to motives for the contract ... ... ... .,. 87 Effect on consent of of law... ... ... .,. ... 90 of law of a foreign country is a of fact ... ... ... 91 of law distinguished from of fact... ... ... ... 93 of law ... ... ... ... ... ... ... 95 as to existence of legal title or right ... ... ... <)6 Action of courts of equity in regard to of law ... ... 98 as to legal effect or construction of documents ... ... 101 of well-settled principles of law ... ... ... ... 103 73 IMJiX. PAGE MISTAKI continued. Effect of of law in Europe ... ... ... ... ... 106 Effect of on transfer of ownership ... ... ... ... 103 Effect of on transfer of ownership in case of non-specific chattels ... 109 Effect of on transfer of ownership in case of specific chattels 110 Recovery of a thing given under ... ... ... 113 Uneonscientiousness of retaining money paid under ... 116 Negligence does not interfere with recovery of a thing given under of fact ... .. ... ... ... ... 115 Effect of on transfer of rightful possession... ... ... ]23 Effect of on consent in English criminal law ... ... 249 Effect of on consent in larceny cases ... ... ... 250 as to identity of person ... ... ... ... ... 257 Delivery by an agent to a wrong person by ... ... 253 as to thing given ... ... ... ... ... 258 has no effect on transfer of mere possession ... ... 128 as to motive confused with as to identity ... ... 260 How far receiving of a thing given by as to motive is larceny ... ... ... ... ... ... ... 262 No larceny if person receiving shared giver's at time of receipt ... ... ... ... ... ... ... 267 No larceny if person receiving was not aware of giver's at time of receipt ... ... ... ... ... ... '-'7o MITIGATION, Consent as a of liability ... ... ... ... ... 4C4 Consent as a ground for of liability ... .. 434 Consent as a ground of in case of homicide ... ... 438 Homicide in duel is a of offence of murder in India ... 444 Consent is ground of of punishment in case of bodily injuries ... ... ... ... ... ... ... 457 Even approval not amounting to consent is a of punishment. 409 MOTIVES, Mistake as to the for the contract ... ... ... ... 87 Effect of consent not affected by of its giving ... ... 228 Mistake as to cont'aseJ with mistake as to identity ... CO How far receiving of a thing given by mistake as to is larceny ... ... ... ... ... ... ... 262 MURDER, Abetment of suicide distinguished from ... 391 Objections to the treatment of homicide by consent as ... 395 How far homicide in a duel is ... ... ... ... 402 Homicide in a duel is a mitigation of offence of in India ... 444 Unsatisfactory effects of treating homicide in a duel as ... 445 Attempts in English law to reduce homicide in a duel from 44' General concensus against treating in a duel as ... 44^ Homicide id a premeditated fight between armed factions is 450 INDEX. 573 PAGE NEGATIVE, Application of rule of onus prolandi as to person alleging the ... ... ... ... ... ... 542 NEGLIGENCE, does not interfere with recovery of a thing given under mistake of fact ... ... ... ... ... 115 NEGOTIABLE INSTRUMENTS, Mistake as to nature of transaction of 73 NON-CONTRACT, Consent in law ... ... ... ... ... 22 Consent may be implied in law ... ... ... ... 149 NON-PREVENTION, Consent not implied from ,., ... ... 176 OBJECT, Mistake as to the identity of the of contract ... ... 77 Mistake as to the existence of the of contract ... ... 78 Mistake as to the substance of the of contract ... ... 80 Error concerning essential quality of of agreement ... 84 Necessity of absence of consent must be determined by the of the offence ... ... ... ... 344 OFFENCES, Absence of consent expressly made essential of some ... ... ... ... ... .... ... 14 Consent is not justification of acts constituting public ... 431 Consent is not justification of acts constituting other irrespective of harm caused by them to person giving consent ... ... ... ... ... ... ... 432 against the Person Act (English), 3861 306 S. 49 291 52 311 53 295 56 294 ONEROUS CONTRACTS, In consideration of the person not a motive ... ... ... ... ... ... ... 76 Onus Prol/amU, as to consent ... ... ... ... ... 539 as to absence of consent when essential for an offence ... 539 Application of rule of as to person alleging the affirma- tive 541 Application of rule ofr as to person alleging the negative 542 OPERATION, Negative of consent ... ... ... ... 340 OPPORTUNITY, Consent to an act not implied by creation of for it ]83 Ostativa, Error in ... .. ... ... ... ... 77 OWNERSHIP, Effect of mistake on transfer of ... ... ... ... ]08 Transfer of in case of non-specific chattels ... ... 109 Transfer of in case of specific articles ... ,. ... HO PARTIES, Mistake as to the to the contract ... ... ... 75 Personality of how far essential to contract ... ... 75 57 4 TAGF, PEKAL CODE, BELGIC, Art. 348 . ..-. ... .,. ,,. ... 45-8 350 .., ..... . ........ , 458 430 PENAL CODE. CALIFORNIA, S. 220 ............... 314 261 ...... 27, 246, 288, 314, 331 PENAL CODE, DANISH, S. 196 ............... 436 PENAL CODE, FRENCH, Art. 321 ... .. .......... 395 322 ............... 395 327 ............... 395 331 ......... 318, 327, 352, 356 336 ..... , ...... 365, 366, 367 337 ............ 366,867 338 ....... ..... 366, 367 354 ........... 295,361 356 ............... 362 379 ............... 258 393 ............... 303 PENAL CODE, GERMAN^ Para. 142... ... ... 409.412,413,414,457 172 .................. 368 176 .................. 140 179.. ................ 141 206 .................. 449 207... .. ............. 449 216 ............ 394,413,414,436 218 ........... ........ 458 223 ............... 412,414 224 ............... 412,413 225 ............... 412,414 236 ...... . ........... 196 237 ............ ... 196, 200 239 .................. 357 240 ............... 285, 334 242 .................. 346 PENAL CODE, HOLLAND, S. 293 ...... ... , ..... 436 PENAL CODE, HUNGARY, S. 282 ............... 436 PENAL CODE, INDIAN, S. 30 ... 141 31 .................. 141 32 .................. 203 85 ... .. ............. 339 86 . ,.. 339 INDEX. 575 FJCNAL CODE, INDIAN, continued. PAGE S. 87...15, 150, 192, 211, 321, 372, 373, 407, 416, 421,422,428, 431, 454 88 ...20, 150, 192, 372, 406, 423, 424, 428, 431 89 ...15, 150, 372, 373, 423, 426, 427, 428, 429 90 142,372,305,309,311,838,441 91 431, 432 92 15,423,429 92 Expl. ... 406, 423 116 178 127 506 372 505 188 505 193 505 194 505 195 605 196 505 199 505 200 , 505 205 505 206 505 207 505 208 505 209 ... 505 210 505 211 ... 505 228 505 300 Excep. 4 450, 451 300 Excep. 5 15, 248, 405, 419, 433, 450, 451, 452, 455 312 458 313 458 314 15 339 357 340 357 343 358 344 ... 358 345 358 346 ... 358 347 358 348 358 354 238 360 14 361 14, 223 362 294 368 ... 358 370 359 374 358 14,142,195 238 378 14, 151, 227 576 INDEX. PAGtt PENAL CODE, INDIAN, continued. S. 379 178 390 361 415 ... ... 297 463 506 471 506 475 506 476 506 493 142 496 142 497 14 498 358 503 300 PENAL CODE, ITALIAN (Coclice Penale) Art. 239 449 243 449 340 295 341 295, 362 356 367 857 368 35S 367 370 3S5 383 459 384 459 402 14 404 303 PENAL CODE, MINNESOTA, Art. 245 317 PENAL CODE, NEW YORK, Art. 23 335 174 384 175 388 176 388 178 384 207 ... 408 208 408 278 27, 195,246 278 (4) 338 278 (5) 310 PENAL CODE, SAXONY, Art. 272 .. ... 226 PENAL CODE, SPANISH, Art. 335 335 350 449 3c9 367 360 ... 218 363 283 368 363 369 363 399 223,459 INDEX. 577 PAGE PENAL CODE, SPANISH, continued. Art. 410 363 421 436 431 303 432 303 433 303 437 346 PENSIONS ACT, S. 4 499 PERFORMANCE, Impossibility of of contract prevents creation of contract ... ... ... ... ... ... ... 79 PERSON, Mistake as to ... ... ... ... ... ... 76 Mistake as to the identity of ... ... ... ... 257 Delivery by an agent to a wrong by mistake ... ... 253 Waiver of defect of jurisdiction over ... ... ... 476 PERSONALITY, of parties how far essential to contract ... ... 75 PERSONATION, Under common law no rape in cases ... ... 276 PHYSICIAN, Profession of as incapacity to contract ... ... 135 PLEADING, after objection to jurisdiction not a waiver of its absence ... ... ... ... ... ... ... 486 POSSESSION, Effect of mistake on transfer of rightful ... ... 123 Kightful distinguished from ... ... ... ... 124 may be transferred by mere physical delivery ... 126 Mistake has no effect on transfer of mere ... ... 128 PREMEDITATED, homicide in a fight between armed factions is murder... ... ... ... ... ... ... ... 450 PRESIDENCY SMALL CAUSE COURTS ACT, S. 20 460 69 502 PROCEDURE, Waiver of rights in matters of ... ... ... ... 508 Waiver of ordinary forms of ... ... ... .. 520 PROCEEDINGS, Right of waiver unlimited in civil ... ... ... 510 right of waiver limited in criminal ... ... ... 513 Waiver of rights in criminal ... ... ... ... 514 Accused may bind himself by agreement in criminal ... 524 PROCESS, Waiver of irregularity of initiative in criminal pro- ceedings ... ... ... ... ... ... ... 494 PROFESSION, of a banister-at-law or physician as incapacity to contract ... ... ... ... ... ... ... 335 PROPERTY, Consent in other offences against ... ... ... 347 PROSECUTION, Threats of may constitute duress ... ... 53 PUBLIC PEACE, Consent in assault in disturbance of ... 353 578 INDEX. PAGE PUNISHMENT, Consent is ground of mitigation of in case of bodily injuries ... ... ... ... ... ... ... 457 Even approval not amounting to consent is a mitigation of 459 QUALITY, Error concerning essential of object of agreement 84 QUANTITY, Mistake as to ... ... ... ... ... ... 87 RAPE, Sexual intercourse with unconscious female is ... ... 25 Under common law no in personation cases ... ... 276 Cases against conviction for often turned on supposed necessity of force for that offence... ... ... ... 280 Consent obtained by fraud negatives chiefly under spe- cial legislation ... ... ... ... ... ... 288 Statutory protection of minors in regard to ... ... 306 Substitution of minority for force in ... ... ... 307 Consent immaterial in case of au attempt to commit on minors. ... ... ... ... ... ... ... 311 Sexual intercourse with a female by drugging her into intoxication is not though punished as such ... ... 334 Consent in ... ... ... ... ... ... ... 349 Evidence in cases of female's prior connection with the accused ... ... ... ... ... ... -.. 544 Evidence of female's character for unchastity on charge of ' 545 RECOVERY, of a thing given under mistake ... ... ... 113 RESTRICTION, of the exemption from liability in regard to the age ... ... ... 372 on guardians' power of consent .. ... ... ... 527 RIGHT, Mistake as to the existence of legal title or RISKS, Doctrine of obvious in England ... ~ Doctrine of obvious in the United States .. ... 169 Exact character of the voluntariness of the assumption of Takiuo- of harm contrasted with consent to suffer harm... 417 Sati, Burning the is only culpable homicide ... ... 443 SERVANT, Possession of a L27 SLAVERY, Consent in ... SOLICITING, Consent to an act implied by a person to doit ... 187 SPIRITUAL, Effect of force on consent STAMP ACT, INDIAN, S. 69 ; ->-> SUBJECT-MATTER, Mistake as to the nature or fundamental quali- ties of f .. Consent cannot give jurisdiction over ... INDEX. 579 PACK SUBSTANCE, Mistake as to the of the object of contract ... .... 80 Mistake as to the in English law ... .. ... ... 82 SOBSTANTIA, Error in ... ... ... ... ... ... 80 STATUTE, 3 Edw. I., c. 13 193, 306 13 Edw. L/C. 34 193,219 33 Hen. VIII., c. 1 139 13Eliz., c. 5 64 18Eliz.,c. 7 306 2-7Eliz., c. 4 64 29 Car. II., c. 7 204 6 and 7, Wm. Ill 542 9 George IV., c. 31, s. 17 306 6 and 7 Wm. IV., c. 65, s. 9 497 11 and 12 Viet., c. 43, s. 1 494 12 and 13 Viet., c. 76, s. 1 291 24 and 25 Viet., c. 97, s. 62 494 24 and 25 Viet., c. 100 vide Offences against the Person Act. 3 and 35 Viet., c. 87, vide Sunday Observance Prosecution Act, 1871. 48 and 49 Viet., c. 69, ss. 4, and 5 311 c. 94, ss. 3 and 4 306 42 and 43 Viet., c. 30, s. 10 497 43 and 44 Viet., c. 45 317 45 and 46 Viet., c. 61, s. 62 2 48 and 49 Viet., c. 69 vide Criminal Law Amendment Act, 1885. 51 and 52 Viet., c. 43 vide County Courts Act, 1888. Statute of Westminster I. vide Statute 3 Edw. I., c. 13. Do. II. do. 13 Edw. I., c. 34. SUICIDE, Immunity of punishment of ... ... ... ... 377 not an offence as it does not contemplate injury to any rights 378 not punishable as indicative of unsoundness of mind at the time of its commission ... ... ... ... ... 379 Inadvisability of punishing ... ... ... ... 380 in English law 383 Penality of attempt of 383 Penality of abetment of 385 Abetment of in English law ... ... ... ... 387 Attempt and abetment of punishable in India ... ... 388 Abetment of distinguished from murder ... ... ... 391 Distinction between abetment of and homicide of con- senting person ignored in England ... ... ... 389 SUNDAY OBSERVANCE PROSECUTION ACT, 1871, S. 1 505 74 580 INDEX. PAGE SURGICAL OPERATION, Sexual intercourse under pretext of is rape ... ... ... ... ... ... ... ... 275 THEFT, Absence of consent essence of ... ... ... 344 How far consent obtained by fraud is consent in ... 297 THING, Mistake as to given ... ... ... ... ... 258 How far receiving a given by mistake as to motive is larceny 262 THREATS, Nature of constituting duress ... ... ... 38 of prosecution may constitute duress ... ... ... -53 TITLE, Mistake as to the existence of legal or right ... ... 96 TORTS, Operation of consent on ... ... ... ... 3 Consent distinguished from free consent in ... ... 137 Recognition in law of of the implied consent to conse- quences ... ... ... ... ... ... ... 164 TRAPS, Consent to an act not implied by providing facilities for it by laying ... ... ... ... ... ... ]79 TRIAL, Waiver of right of by jury ... ... ... ... 530 UNCHASTITY, Evidence of female's character for on charge of rape ... ... ... ... ... ... ... 545 Evidence may be given of individual acts of with persons other than the accused ... ... ... ... ... 546 UNCONSCIOUS, No consent of person while ... ... 25 Sexual intercourse with female is rape ... ... 25 UNDUE INFLUENCE, as affecting freedom of consent ... ... 56 UNSOUNDNESS OF MIND, Common law did not recognize as disqualification of consent ... ... ... ... 321 Attempted extension by analogy of rules concerniug minority to ... ... ... ... ... ... ... 325 Statutory legislation for the protection of persons of ... 327 Suicide not punishable as indicative of at the time of its commission ... ... ... ... ... ... 379 VOIDABLE, Absence of free and fair consent makes contract only 61 WAIVER, of defect of other jurisdiction ... ... ... 470 of defect of local jurisdiction ... ... ... ... 473 of defect of jurisdiction over person ... ... ... 476 of personal exemption from jurisdiction ... ... 476 of disqualification of a Judge at common law ... ... 477 No of statutory disqualification of a Judge ... ... 479 of defect of personal jurisdiction by appearance,.. ... 483 Pleading after objection to jurisdiction not a of its ab- sence ... ... ... ... ... ... ... 486 of irregularities in initiating proceedings ... ... 489 INDEX. 581 PAGE WAIVER continued. of the irregularity of the first institution of proceedings in a court not having jurisdiction ... ... ... 49.1 of irregularity of initiative process in criminal proceed- ings ... ... ... ... ... ... ... . 494 of conditions of exercise of civil jurisdiction ... ... 498 of conditions of exercise of criminal jurisdiction ... 504 of rights in matters of procedure ... ... ... ... 508 Eight of unlimited in civil proceedings ... ... ... 510 limited in criminal proceedings ... ... ... ... 513 of rights in criminal proceedings ... ... ... 514 of accused's right of not being asked to criminate him- self 517 of ordinary forms of procedure ... ... .., ... 520 not allowed where prejudicial to accused ... ... 527 of incompetency of evidence ... ... ... ... 528 of right of trial by jury ... ... ... ... 530 of the number of jurymen ... ... ... ... 531 of formal rules for empanelling jury ... ... ... 536 WILL, Consent distinguished from .., ... ... ... 192 BY THE SAME AUTHOR. LAW OF RES JUDICATA; INCLUDING THE DOCTRINES OP JURISDICTION, BAR BY SUIT, LIS PENDENS, MERGER, &c. About 900 page*, Royal 8ca. EXTRACTS FROM: SELECT LETTERS, LA.W JOURNALS, &c. The Right Honorable Lord ffei-scliell, Lord Chancellor of Eng- land I am much honoured by your wish to dedicate your work to me, and have much pleasure in acceding to your request. The Right Honorable Lord bracnaghlen, of the Judicial Committee of Her Majesty's Privy Council Permit me to congratulate you on the very successful manner in which you have accomplished your under- taking, and to say that I greatly admire the learning and research the work displays. The Right Honorable Lird Tfo'jhonse, of the Judicial Committee of Her Majesty's Privy Council-- A valuable addition to our law treatises. The Right Honorable Sir Richard Conch, of the Judicial Committee of Her Majesty's Privy Council A. valuable work. Wltltleij Stokes, Esq., C. S. I., C. I. E , Late Legal Member of the Viceroy's Council Valuable and interesting book. Sir John Scot*, Judicial Adviser to H. H. the Khedive Excellent work on Rex Jwlicata. I have fe*ted it in various ways and found it most sound. I wish we had iu Egypt a few native lawyers such as India has produced. The Honorable Sir Al.xawttio6 reference to all the extant authorities on a some- what recondite subject. In particular I have been very much struck with the familiarity shown by the learned author with the American decisions. The learned author has collected and digested a vast mass of these judgments, and presented the result in a dear and interest- ing form. Some idea of the care and labour bestowed upon the work may be formed from the fact that the list of cases referred to fills of itself 61 octavo pages of closely printed small type. The Honorable Sir Arthur Collins, Kt., Q. C., Chief Justice, Madras High Court Learned and well arranged treatise ou Ues Judicuta a most valtuklle and useful v:ork. The Honorable J/r. Lyttelton IJ. Bayley, Acting Chief Justice 7 Bom- bay High Court A valuable work. The Honorable Mr. 0. A. Ro, Senior Judge, Pnujab Chief Court- A very valuable book of reference. The Honorable J/r. Wood! urn, C. S. T., Chief Commissioner, Centra] Provinces A treatise of yreat learning and research. T. W. Crosthiraite^ Esq., Governor-General's Agent for Central India The subject is one of much interest, and you appear to have treated it with much care and ability. Your work will, I ana sure, be very useful. Hon. Melville IV. Fuller, Chief Justice, Supreme Court, United States. Valuable work on Kes Judicata which I have found exceed- ingly interesting. You may well be congratulated on your success in accomplishing a main object you had in view in its preparation, that of showiug practically the great advantage to the administration of justice, of the knowledge of contemporary laws and decisions iu other countries. Jidge John F. Dillon, Esq., Author of Commentaries on the Law of Municipal Corporations, and of the Laws and Jurisprudence of England and America I have already read the preface and some parts of the text of the work enough to satisfy me of its yreat learning and in- trinsic value. It is my purpose to read the work consecutively at my earliest leisure. Allow me to say that I am amazed at the marvello-ifs learning and industry which you have brought to this subject. Jvdye John F. Dillon, Ezq. I recently delivered an Address before the State Bar Association of Xew York at Albany. While there I met the accomplished Librarian of the New York State Law Library, who was equally astonished and pleased that the technical subject of Res Judicata as it exists in the English law should have been, so ably and learnedly expounded by a native of India, H. C. Black, Esq., Author of Treatises on "The Law of Judg- ments/' &c. I cannot refrain from expressing to you, in a more direct and personal manner, my high, appreciation of the many exccl/enciex of the work with which I have been favoured, and my hope that you may be encouraged to make farther contributions to the literature of the law, to its advancement, I doubt not, no less than to your own credit. That yon and I the one a representative of one of the very oldest civilizations of the globe, the other a product of almost its latest, separated, moreover, by half the circuit of the earth should both have travelled the by-ways of this difficult subject, and should, in the end, agree so nearly in the results of our labours, is surely a circum- stance deserving of mention between us. 1 beg, therefore, that you will accept my congratulations upon your very valuable work, which shall occupy an honoured place in niy library, as also the assurance of my distinguished regard. 3 5?, P>. (rtiitukthl, Esq., Law Librarian, New York State Library I have had the pleasure recently of adding to this Library your work on lies Judicata, I believe that no [aw book has couae under my obser- vation during the 27 years of rny service as Librarian, of the Law Department of the Library which has commanded rny attention to as great a degree as this. The bo ik not only is well written and the subject thoroughly and broadly treated, but the remarkable feature disclosed by the work is that the author should be so familiar with American jurisprudence. You cite the American authorities as freely and familiarly as those of India and Great Britain, and have produced a work which can be used by American lawyers in American Courts. How you were able to do this while living 1 in a country so remote from our own, in which I had supposed that there were no lawyers who took the slightest interest in American Law, I am not able to understand. I arn certain that no Enyliifh lawyer has yet shown an equal degree of conversance with our law and authorities. Judge John F. Dillon, of N. Y. City, than whom a more accomplished. Jurist does not live in America, shares with me the views herein expressed. I had quite a chat with him a few days ago concerning your book. I have just I'eceived a letter from him in which he states that jou are preparing a work on Fraud, also that you kave some thought of coming to this country on a tour of obser- vation. I sincerely hope that you will come and that I shall have the pleasure of welcoming you to tin's Law Library which is one of the four largest in the world, now having 51,00-0 volumes on its shelves. Frank C. Smith, Esq., Editor, American Lawyer. The work is one of particular value to practitioners, but especially to scientific students of law. I wish to commend most heartily the spirit and method which characterizes your work. I believe the time is fast approaching when the standard works of Law will deal more largely with Comparative Jurisprudence than has been the case in the past. Your book is ait admirable pioneer in this coming field of legal literature. Preface to Mr. Van Fleet's treatise on Re.; Judicata, dated Septem- ber 1895. When the manuscript of the present work was about com- pleted, I received a book published at Uelhi, India, entitled ''The Law of Res Judicata," by Hukni Chanel. I am indebted to this excel- lent treatise for valuable additions to the present work. As I had no access to the Indian reports, I have quoted Mr. Chand's statements as to what these cases decided, always giving him proper credit*. The ability and learning of the author will be manifest to those who read the quotations from Mr. Chand's book. TJi3 La,w Times, London, 28th July 1894. This is a work disclosing great industry and learning combined with a very clear apprehension of legal principles Mr. Chf.ud demonstrates most clear- ly the advantage gained by extended study in a single branch of law, and his present treatise will be found to be exhaustive of his subjects, * In the first volum-i alone, oat of 62 1 ptigoi as many as 135 are takeu bodily from Mr. Chand's work. It is curious to see the principles of this brand) of the iaw supported by citations from American text-workers nud Judges, and Judges in India and England. But here they are, and therefore lighted up a* we suppose no legal principles have leen illuminated before. We have no treatise, in England dealing with this subject. None, we venture to say, canliofe to excel Mr. Chanel's work. The trne nature of Res Jitdt- cata is well defined its difference from estoppel with which it is often confounded. Questions of jurisdiction, of persons affected, with ample quotations from all possible authorities, find their setting here. No portion can be selected which is better than the rest, all is marked //// thoroughness and appreciation. We need not say we recommend the volume to all who desire to possess an exhaustive treatise upon a very important subject. The Law Journal, London, 7th July 1894. The voik is a remarkalfo monument of industry and research. It appears to be a book of which any school of law might justly l>& proud. Its statements are well und clearly expressed, and its arrangement and plan are logical and com- prehensive We congratulate Mr. Httkm Chand on having effectively filled a vacant place iu the shelves of our law libraries. The Law Quarterly Review, July 1894. This is a remarkable book. . It is a stupendous book The Author claims that he has referred iu the text to four thousand cases, and to all the American and English text-books on the subject. He also makes copious references to French authors and to writers on the Civil Law. As far as can be gathered from a cursory inspection, Mr. Hukm Chand seems to ha-ve really done all that he claims to have done. His autho- rities seem, all of them, to have been carefully selected and judiciously compared. Mr. Hukm Chand writes excellent English. He rarely makes a slip ; and his language is clear. He must also have a good knowledge of Latin and French. The book impresses one favourably : nis quotations are apt, his arrangement is good; and his own remarks are sensible. The Laic Notes, December 1894. This is an enormous and exhaus- tive work. It deals mo&t thoroughly with subjects which in ordinary books are not sufficiently dealt with, and is a perfect mine of decisions on the doctrine it touches. We have but tasted at this fountain-head of learning. We congratulate the author on having compiled such a monumental work. The Juridical Review, January 1895. This work is something of a novelty in our legal literature. The chapters on jurisdiction and foreign judgments are of great general interest, presenting, as they do, a very complete statement of the English and American case law on these subjects. As such they will afford valuable aid to the student of international private law. The citation of authority appeal's to be fully up to date. Apart from the legal profession in India, for whom it is principally intended, those elsewhere who have oocnsion io consult the work will no doubt find the hope of the author to be realised, that, "as a repertory ot'a mass of legal learning on the subjects treated in it, it will not fail to be useful in any country." JMW Book News, St. Paid, Minn. United States, October 189*. The author of this learned treatise, Kai Hukm Chand, M. A., is the Chief Judge of the City Court of Hyderabad, India. Deeply versed in the learning of the English Courts and the traditions of English Jurispru- dence as well as in that of his own country, he adds to these qualifi- cations a minute and scholarly acquaintance with several other systems of laiv, ancient and modern, and a fluent mastery of several languages. He brings to bear upon the very difficult and intricate subject which he has chosen to treat the intellectual subtlety characteristic of his race, and also a breadth of inew, a capacity for generaUzation, and a faculty for patient and exhaustive research, which were less to be expected. The work before us embodies what is probably the most thorough examin- ation of the subject of lies Judicata which has yet appeared in any language The motive (we might almost say the inspiration) which has mainly guided the author in the preparation of this work, and which has influenced his views on many ofits most recondite topics, is his strong hope that the jurisprudence of the various civilized coun- tries of the world, in regard to the great principles of the law, may ul- timately be brought into some semblance of harmony, and a strong: conviction of the assistance which the courts, and even the legislatures, of each country may expect to derive from a comprehensive acquaint- ance with the systems in force in other jurisdictions than their own. That these views are sound and wise cannot well be denied. Still less can it be doubted that, their general recognition in ttois country would be productive of much advantage to our jurisprudence. . . . We cannot but think that the rational development of jurisprudence in this country would be much furthered by the general study by our courts and lawyers oi such works as this of Hukm Chand's. Here he has brought together, in reasonable compass, all the learning of the English, Indian, American and British Colonial Courts, on a subject which, even at this day, bristles with difficulties and disputed points The doctrines of the writer are sound and sensible, and founded upon the very best authorities extant. The reasoning, moreover, is generally clear and convincing, the treatment is exhaustive, and the style is easy and lucid. As the book is mainly intended for the courts and profession in the author's own country, we find, as we should expect, that the citations to the Indian reports are very complete. But he has also done full justice to the decisions of the various courts of England, and has not neglected those of England's other Colonies and Depen- dencies. But the most surprising feature is the author's extraordinary familiarity with the American cases. Without making an arithmetical calculation, we venture to say that all the most important authorities on the subject of Kes Judicata, from the Federal and the State Courts, will be found quoted or referred to in this volume. Textwriters, too, of all countries and times, have lent their aid. The continental jurist*, 6 finch as Pothier, Lacombe, and Moremi, are frequently referred to, aud on almost every page we find an extract from cue of-tlie standard American treatises, such as Story on the Conflict of Laws, Bigelow oa Estoppel, Freeman on Judgments, or Van-Fleet on Collateral Attack. AViih this great wealth of material at his command, with a broad and discriminating intelligence, and with patience to unravel all the intri- cacies of the subject j we should expect the jurist to produce a really valuable contribution to the literature of the law ; and this expectation, in our judgment, Ilukm Chand has fully realized. By H. Campbell Black, Esquire, Author of Treatises on "The law of Judgments, 5 ' <; Constitutional Prohibitions," Tax-Titles," &c. The Amerve&n Law Register and Review, January 1895. This for- midable work, which lies before us for review, is a tribute and further recognition of this grand triumphal inarch which has circled the world and teLs us anew how in these great Anglo-Saxon Empires, over which float tue Cross of St. George and the Stars and Stripes, there is a still greater force than the British Oak at work to protect against trespass vi et armis. Thousands of jurists and judges are applying the same principles, drinking from the same fountains, solving the same problems, working out the evolution of law and equity along the same lines, with the same underlying aim and thought in view, and obedient to the same jurisprudence. Kecognixing this common ancestry and common foundation of our common law, this learned Indian jurist ex- presses in his preface the conviction " That courts, and, to some extent, even the Legislatures of one country, do not derive that assistance from the deliberations and declarations of eminent jurists and judges of other countries to which their high judicial value entitles them ; and lawyers in every country often devote their time and energies to the discussion and determination of questions that have been already most fully debated and elucidated in others. Enactments are thus some- times made aud cases frequently disposed of in one country, in accord- ance with principles which are there regarded as indisputable, but which are not only in direct conflict with those recognized aud acted upon elsewhere, but have themselves, in some instances, after a long trial, been found inconsistent with the proper administration of justice, and deliberately abrogated or tacitly relinquished as unsound." It has been thought proper to quote freely from these two gieut writers (the other being Judge John F. Dillon) who seem to clasp hands across the seas, because they indicate and vindicate the broad spirit of philosophy with which our friend, writing " under Indian skies/' has approached a branch of the law which is to-day of equal import at the base of the Rocky and Himalaya mountains. 1 find it in my heart to wish that the Law Register would give the space necessary for a reprint of the entire preface, so much does it commend itself as a convincing mono- graph illustrating " the great advantage accruing to the Municipal law of every coubtry, both in regard to its development and practical application, by a familiar acquaintance on the part of those concerned in its administration with the corresponding principles recognized and acted upon in other countries, an advantage not restricted to any particular branch of law, and extending even to the codified brandies of it." Snch a spirit, coupled with an infinite capacity of research, reinforced by a truly judicial ability to co-ordinate, marshal] and weigh painfully acquired knowledge so that the resulting evolution may be entitled to be christened irisdom, may be fairly attributed as the endow- ment which onr learned author has brought to the consideration of the doctrine of res judirata in its application to civil proceedings, and which, as he says, he has selected " to form the subject of his work on account of its practical importance and unusual difficulty." The deci- sions of England, India and America are all laid under tribute to elucidate the principles laid down, and the French and Roman jarists' have not been overlooked in tracing these principles to their source. 1 A fairly full index contributes to the utility of the book as a work of reference. The style is clear, concise and attractive, so far as it be- longs to the author, although the enunciation of principles often Las been left to the ipsissima verba of the judges or lawyers from whom he cites constantly and copiously. While the book is not likely to be. thumbed over by the every-day case law practitioner, it is one that commends itself to the lawyer who believes that law should be studied as a science as well as practised as an art. It is certainly a most valuable contribution to legal literature. Edward P. Allinson. Harvard Law Review, November 1894. A principal object of the author of this interesting treatise is, to show the great advantage to the administration of justice, of the knowledge of contemporary laws and decisions iu other countries. This object has been most faithfully, and successfully carried out. An enormous mass of authority has been intelligently gathered from the reports and from approved text-writers of England and the United States, as well as from the states of British India ; and the advantage thereby gained is surely no slight one. The book is one to be cordially we'comed ; and one that may well find a wide use in our country. The mere fact that the decisions of three great nations are brought together is enough to secure the work that place in legal literature which is due to useful originality and broad learning. But besides this, it gives to the American lawyer authorities equal to that contained in any work on the subject by an author of his own country, and to the student of law it presents a fascinating picture of the application of the Common Law to new and strange circumstances. Laiv 'Book News, St. Paul Minn. United States, August 1894. A COSMOPOLITAN JURIST IN INDIA This book is of more than ordinary interest because of the extraordinary breadth of learning shown by the author. The volume indeed shows a wide range of study and research. Besides the familiarity which is to be expected with the Indian, British and Colonial Reports, the learned author dia plays a knowledge of Continental jurisprudence and American Case Law that would put English lawyers and law-writers to the blush, if they considered ignorance of American law a thing to blush for. His. pages fairly bristle with citations and quotations of American cases, including recent decisions from the publications ot the Nutiouul lie- t 8 porter System. lie seems to have followed a truly scientific met/iud in the treatment of his subject, and to have made use of mutter drawn from the entire field of International jurisprudence. The American Law Review, November 1394. We have received a most learned and exhaustive work ou the Law of Res AdjnJicafa, written by Hon. Hukrn Chand, M.A. The learned author shows singular insight, for a foreigner, into our complicated Federal and {State Systems and the relation of the two systems to each other. Judge Dillon, in his letter to the publisher of Albany Law Journal, states that Judge Chand has furnished a work "in which this techni- cal and recondite subject is treated with exhaustive learning:" a statement in which we are fully prepared to concur. The University Law Review, January 1895 The extension of the domain of Anglo-American law as an interesting illustration in this volume of nearly eight hundred pages which comes to us from Delhi. American decisions abound in the citations, among English and Indian authorities; and the student of general jurisprudence will find much which will aid him in an investigation into the essential elements upon which the quieting effect of a judicial decision upon a controversy depends .... It appears to us that the work of Mr. Chand is a very valuable exposition of the present condition of the law, and useful here iu any thorough research into the principle of Res Judicata. The Kansas Ci f y Star, April 7th, 1895. Lawyers, who vi