Illustration.

Causing miscarriage (unless caused in good faith for the purpose of saving 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.

faith for the benefit of a person without consent.

92. Nothing is an offence by reason of any harm which it may cause to a person for Act done in good 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 possible to obtain consent in time for the thing to be done with benefit. Provided

Provisoes.

First. That this exception shall not extend to the intentional causing of death, or the attempting to cause death;

Secondly.-That this 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 preventing 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, in the committing of which offence it would not extend.

Illustrations.

(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z's death, but in good faith, for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.

(b) 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 Ž a mortal wound. A has committed no 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) 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.

Explanation. Mere pecuniary benefit is not benefit within the meaning of Sections 88, 89, and 92. 93. No communication made in good faith is an offence by reason of any harm to the made in good person to whom it is made, if it is made for the benefit of that person.

Communication

faith.

Illustration.

A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death.

Sections 87-93 apply to cases in which an act likely to result in dangerous consequences is done to a person with his permission or for his benefit. These exceptions are as follows :—

1. Acts not intended, or known to be likely to cause death, or grievous hurt, are not offences, when done to a person above eighteen, who has consented to suffer, or run the risk of the harm. (s. 87.)

The phrase "grievous hurt" is defined in s. 320. Of course, every man is assumed to contemplate that harm which is the probable result of the weapon he uses; therefore, if two persons were to fence with naked swords, though in the most friendly spirit, and one were to kill the other, this would be culpable homicide. (1 East. P. C. 268. Foster 260.) It is to be observed that this exception only applies where the person suffering the harm is above eighteen, and, therefore, a boxing match between two school-boys would be criminal. But it would not be criminal for a parent or master to inflict moderate punishment upon a child or apprentice, for this is in itself a lawful act and comes under the exception in s. 79. (Arch. 568.) Nor is any act, whether with or without consent, an offence, if the harm is of a very slight character. (s. 99.)

The harm done must not be different in kind or degree from what the person has agreed to run the risk of. Therefore, 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, either of the players in a fencing match would be bound to discontinue the moment the button fell off his foil. On the same principle, all the recognised rules to the contest must be observed, for they enter into the estimate of the risk. Where two men are sparring, every blow must be fair. And so it is laid down in East, (1 E. P. C. 269.)

"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 terms. 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, and death ensued, the want of due and friendly warning would make such act amount to manslaughter, but not to murder, because the intent was not malicious."

It may be questioned whether a prize fight between two adults, fairly conducted according to English rules, would be protected under this section. Notwithstanding the apparent ferocity of the contest, it may well be argued, that it is not on the whole likely to cause death or grievous hurt; certainly the annals of boxing are in favour of such a position, where the combatants are at all matched. On the other hand there is no doubt that the law of England, which countenances such sports as fencing, wrestling, and cudgel playing, always treated prize-fighting as absolutely illegal, and even extended the criminality to every one present, and countenancing the transaction. (1 Russ. 854.) To a certain extent the greater danger of prize-fighting may be the reason for the difference, but probably the real cause is the publicity with which such contests are attended, and the disorderly crowd which they collect. Accordingly, in cases where no death ensued, the English practice is to indict the offender for riot and breach of the peace. (Foster. 260. Reg. v. Billingham, 2 C. & P. 234. Reg. v. Perkins, 4 C. & P. 537.) This being so, a prize-fight would still be criminal under s. 91, independently of any injury intended, or accruing to the parties engaged.

2. No act, not intended to cause death, is to be an offence, if it is done for the benefit of the person suffering it; first, with the consent of such person, being qualified to give such consent, and giving it of his own free will, with full knowledge of all the facts. (ss. 88, 90.) Secondly, in the case of persons not capable of giving consent, if the consent of the person lawfully in charge of them is obtained (s. 89); or, thirdly, even without obtaining consent, where under the circumstances such consent could not possibly be obtained. (s. 92.)

The sections will have to be very liberally construed, or they may prove most dangerous to medical practitioners, who must take steps, often of a most dangerous character, upon the spur of the moment.

No act which is intended to cause death will be protected. And therefore, a man who killed a woman in order to save her from being ravished, or who supplied another with poison in order to enable him to escape from death upon the scaffold, would not be within the exception. (See ss. 305, 306.) But it is no offence to do an act before the birth of a child, which prevents its being born alive, or causes it to die after its birth, when the act is done in good faith for the purpose of saving the mother's life. (s. 315.)

Mere pecuniary benefit will not be sufficient. (Exp. s. 92.) I once knew a strange case, in which a man who had a life estate in himself, entailed upon his children, with reversion to himself in fee, wanted to raise a loan upon the security of his estate. He had no children, but as it was possible he might have issue, the security was rejected. He hit upon the strange idea of having himself castrated in order to make possibility of issue extinct! I need hardly say that the proposal to effect this singular covenant against encumbrances was not sanctioned by his lawyer. The performance of such an operation for such a purpose would, of course, be illegal under this Code; first, because the benefit is not such as is contemplated by the act; secondly, because grievous hurt, such as emasculation is declared to be, can only be done for the purpose of preventing death or other grievous hurt, or for cure of a disease. (1 R. C. CR. 12.) And, therefore, a soldier who should aid another in mutilating himself, in order to procure his discharge, would also be guilty.

As to the consent which is necessary, I conceive that every proper consent should always be presumed, where the act is in itself proper and beneficial; as, for instance, a surgical operation. And this is in accordance with the principle of the law of evidence, that innocence will always be presumed, and therefore 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 the contrary is shown.

"Thus, where the plaintiff complained that the defendant who had chartered his ship had put on board an article highly inflammable and dangerous, without giving notice of its nature to the master or others in charge of the ship, whereby the vessel was burnt, he was held bound to prove this negative averment." (1 Tayl. Ev. § 91.)

Even where no actual consent could possibly have been given, as in the case of a patient who had not been informed of the necessity of any operation, and who was suddenly given chloroform, I have no doubt that the mere fact of his having placed himself under medical care carried with it an implied consent to do every thing necessary and proper for a cure.

The contrary presumption would arise where the act was in itself apparently unlawful. Therefore, a person who had killed or wounded another in a struggle, and who pleaded that it was the accidental result of an amicable contest, entered into by mutual consent, would have to prove his plea. (1 Tayl. Ev. § 96.)

A more difficult case, but one which might easily happen, would be where the party expressly withheld his consent, though the act were admitted to be for his benefit, and for the sole purpose of saving his life. Such a case might possibly arise, where a timid patient could not nerve himself to undergo an operation, however necessary. Such a case is not provided for by this act, and should it arise, the surgeon, if he wished to be absolutely safe against subsequent charges, would be compelled to leave the sufferer to his fate. Of course, if such a charge were brought, and a conviction procured, the punishment would be no more than nominal.

Section 93 was intended by the Commissioners to guard against a possibility which their ingenuity foresaw, though it is hardly likely

ever to become a reality. The words of s. 299 are so wide, that a person might commit the offence of culpable homicide by suddenly communicating disastrous intelligence to a person whose state of health was such that the shock might readily prove fatal. It seemed to the Commissioners that the section ought not to be altered so as to exclude such an act from the list of offences, because, if a person maliciously, and for the purpose of killing or injuring another, imparted a shock of this species, the act was as truly criminal as if a tangible weapon had been used. This section was therefore introduced to protect the innocent, without unduly cloaking the guilty. When we remember, however, that the words "good faith" imply due care and attention, and that it is expressly stipulated that the communication shall be made for the benefit of the person to whom it is addressed, it may be doubted whether the danger, supposing there to be any, is much diminished. (See 1st Report 1846, § § 243-249.)

Act to which a

person is compel

led by threats.

The clause may also be applied in cases which would otherwise come under the head of criminal trespass, (s. 441) or insults. (s. 504.) 94. Except murder and offences against the State, punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence; provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.

Explanation 1.-A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception, on the ground of his having been compelled by his associates to do anything that is an offence by law.

Explanation 2.-A person, seized by a gang of dacoits, and forced, by threat of instant death, to do a thing which is an offence by law; for example, a smith compelled to take his tools, and to force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception.

This section differs slightly from the doctrines of English and Scotch law. By English law, it would appear that a threat of actual