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torts:felonious-torts [2021/07/02 18:14]
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 ====== Felonious torts ====== ====== 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//((Higgins v. Butcher; Markham V. Cobbe)) 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.((Dawkes v. Coveneigh; Markham v. Cobbe)) This view was adopted by Lord Ellenborough in 1810((Crosby v. Leng)), by Lord Tenterden in 1827((Stone v. Marsh)), and by Lord Cranworth in 1845((White v. Spettigue)). +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//.((Higgins v. Butcher; Markham V. Cobbe)) 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.((Dawkes v. Coveneigh; Markham v. Cobbe)) This view was adopted by Lord Ellenborough in 1810((Crosby v. Leng)), by Lord Tenterden in 1827((Stone v. Marsh)), and by Lord Cranworth in 1845((White v. Spettigue)). 
  
 But, in 1837, the rule was effectually applied to exclude a proof in bankruptcy((Ex parte Elliot)). 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: But, in 1837, the rule was effectually applied to exclude a proof in bankruptcy((Ex parte Elliot)). 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: