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Felonious torts

The doctrine of “the merger of a tort in felony” has a history of its own. In 1606, it was declared that there could not be a double proceeding, civil and criminal, in respect of the same act. The felony, it was said, drowns the particular offence, and private wrong.1) This dictum is the first authority for the notion that the civil remedy was merged in the felony. In 1652, it was laid down that, although there was no actual merger, it was a condition precedent to the accruing of the cause of action that the public right should have been vindicated by the prosecution of the felon.2) This view was adopted by Lord Ellenborough in 18103), by Lord Tenterden in 18274), and by Lord Cranworth in 18455).

But, in 1837, the rule was effectually applied to exclude a proof in bankruptcy6). Until 1870, it was practically useless to bring an action, as, till then, on conviction of felony, the felon's property was forfeited to the Crown. In 1872 arose the leading case of Wells V. Abraham, in which Cockburn, C. J., said : “ Where an injury amounts to an infringement of the civil rights of an individual, and at the same time to a felonious wrong, the civil remedy, that is the right of redress by action, is suspended until the party inflicting the injury has been prosecuted.” Blackburn, J., said that there were many dicta of high authority that in such cases “it is the duty of the person injured to prosecute for the criminal offence, before he can pursue his remedy by action for the private injury”; and Lush, J., said : “he cannot obtain redress by civil action until he has satisfied that requirement.” Both these eminent Judges threw great doubt as to the means by which that duty was to be enforced. They said that it was no ground for the Judge at the trial to direct a non-suit (over-ruling Wellock V. Constantine), and that the omission to sue could not form the subject of a plea in bar of the action. In Wells V. Abraham, Cockburn, C. J., suggested that “if an action were brought against a person who was either in the course of being prosecuted for felony, or was liable to be prosecuted for felony, the summary jurisdiction of the Court might be invoked to stay proceedings.” And Blackburn, J., said : “I do not see how a plaintiff can be prevented from trying his action, unless the Court, acting under its summary jurisdiction, interfere.” In this uncertain state of the law the question was discussed, in 1879, in the case of Ex parte Ball, re Shepherd. In this case Lord Bramwell severely criticised the rule and pointed out the various difficulties regarding its application. He said : “ I can think of only four possible ways:

  1. That no cause of action arises at all out of a felony.
  2. That it does not arise till prosecution.
  3. That it arises on the act, but is suspended till prosecution.
  4. That there is neither defence to nor suspension of the claim by or at the instance of the felon : but that the Court, of its own motion, or on the suggestion of the Crown, should stay proceedings till public justice is satisfied.

It must be admitted that there are great difficulties in the way of each of these theories. That the first is not true is shown by Marsh v. Keating, where it was held, prosecution being impossible, a felony gave rise to a recoverable debt. It is difficult to suppose that the second supposed solution of the problem is correct. That would be to make the cause of action the act of the felon, plus a prosecution. The cause of action would not arise till after both. Till then the Statute of Limitation would not run …… where the felon had died it would be impossible. The third possible way is attended by difficulties. The suspension of a cause of action is a thing nearly unknown to the law … Then is the fourth solution right? Nobody ever heard of such a thing ; nobody in any case or book ever suggested it till Mr, Justice Blackburn did as a possibility. Is it left to the Court to find it out on the pleadings ? If it appears on the trial is the Judge to discharge the jury ? How is the Crown to know of it? These are difficulties, then, in all the possible ways in which one can suppose this impediment to be set up to the prosecution of an action. But again, suppose it can be, what is the result ? It has been held that when the felon is executed for another felony, the claim may be maintained. What is to happen when he dies a natural death, when he goes beyond the jurisdiction, when there is a prosecution and an acquittal from collusion or carelessness by some prosecutor other than the party injured ? Baggallay, L. J., laid down:

  1. That a felonious act may give rise to a maintainable action.
  2. That the cause of action arises upon the commission of the offence.
  3. That, notwithstanding the existence of the cause of action, the policy of the law will not allow the person injured to seek civil redress, if he has failed in his duty of bringing or endeavouring to bring the felon to justice.
  4. That this rule has no application to cases in which the offender has been brought to justice at the instance of some other person, in which prosecution is impossible by reason of the death or escape of the felon.
  5. That the remedy by proof in bankruptcy is subject to the same principles of public policy as those which affect the seeking of civil redress by action.

Unfortunately, it was not necessary in this case to decide the point. But, in 1881, in the case of Midland Insurance Co. v. Smith, Watkins, J., after reviewing all the authorities on the question, said that in Ex parte Ball ”the doctrine that it was a condition precedent to the enforcing the civil remedy that the felon should have been first prosecuted, if it ever had any solid foundation, was finally exploded.“ He fully agreed with the propositions laid down by Baggallay, L. J., and held ”that the true principle of the Common law is that there is neither a merger of the civil right nor is it a strict condition precedent to such right that there shall have been a prosecution of the felon, but that there is a duty imposed upon the injured person, not to resort to the prosecution of his private suit to the neglect and exclusion of the vindication of the public law.“ Finally came, in 1885, the case oi Appleby v. Franklin, in which Wills, J., decided ”no action can be maintained for a civil injury resulting to the plaintiff from the felonious act on the part of the defendant, until public justice has been vindicated by a prosecution of the criminal. It is equally clear that the objection to the maintenance of the action cannot be raised by plea, or by demurrer, or, as it would seem, by way of non-suit, inasmuch as the cause of action still subsists.“ The principle upon which this rule is founded seems to be that the interest of the public requires that the law shall be vindicated before the individual who is wronged shall be permitted to have recourse to a civil remedy.

The views of Cockburn, C. J., and Blackburn, J., in Wells v. Abraham, regarding the invoking of summary jurisdiction of the Court to stay proceedings were approved. The Court was even prepared to enforce the rule by striking out the statement of claim, but the case went off on another point. The attention of the Court was, unfortunately, not drawn to the cases of Ex parte Ball and The Midland Insurance Co. v. Smith. Since this decision no case has arisen regarding the application of this rule, but, in 1891, Lord Halsbury, L. C, has incidentally remarked, though the question was not before him, where a claim is founded upon a matter which might be the subject of criminal proceedings, the person seeking to enforce it must prosecute for the criminal offence before he can sue in a civil action7) Thus the law on this subject still remains in a very hazy and unsatisfactory condition.

But it has been expressly decided that this rule does not apply:

  1. To misdemeanours.8)
  2. Where the plaintiff is not the person injured by the felonious act of the defendant.9)
  3. Where the defendant is some person other than the person guilty of the crime.10)

Indian law

The Madras High Court has laid down that a Hindu or Mahomedan, whose civil rights have been infringed by an act which is also a non-compoundable offence, is not bound to prosecute the offender before maintaining his civil action, nor is his right to prosecute his action suspended until the offender is brought to justice.11) But the Calcutta High Court has ruled in an early case, that where a person brings a suit alleging a state of facts which amount to felony, he must show that he has done his best to procure a conviction on the criminal charge before the Civil Court will entertain such a suit.12)

There is no law which requires an injured person in any case to institute criminal proceedings before bringing his action.13) The failure of an injured party to institute criminal proceedings does not deprive him of his right to bring a suit in a Civil Court to recover damages for abuse.14) Even if a criminal charge against a defendant is dismissed, that does not prevent the plaintiff from suing afterwards in a Civil Court.15)

Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact, they are not mutually exclusive, but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred.16)

Higgins v. Butcher; Markham V. Cobbe
Dawkes v. Coveneigh; Markham v. Cobbe
Crosby v. Leng
Stone v. Marsh
White v. Spettigue
Ex parte Elliot
Vernon v. Watson
Fissington v. Hutchinson
Osborn v. Gillett; Appleby v. Franklin
White v. Speitigue
Abdul Kawder v. Muhammad
Coonamull v. Sarno
Shama Churn v. Bhola Nath; Viranna v. Nagayyah; Jina v, Jodha
Shree Nath v. Komul
Roopct Bewa v. Ramcoomar
AIR 2018 NOC 289

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