Midland Insurance Co. v. Smith. 1881 Q.B.D. the case of Higgins v. Butcher (') in the year 1606. The action was brought by the plaintiff against the defendant for damages for assaulting and beating his wife to death. In the report in Yelverton it is stated that Tanfield, J., with the concurrence of Fenner and Yelverton, said, in giving judgment for the defendant, that "if a man beat the servant of J. S. so that he dies, the master shall not have an action against the other for the battery and loss of [569 service, because the servant dying of the extremity of the battery it is now become an offence to the Crown, being converted into felony, and that drowns the particular offence and private wrong offered to the master before and his action is thereby lost." The report in Noy. (") says, "By the court that action will not lie, for the king only is to punish felony except the party brings an appeal." The point, however, was not strictly necessary for the decision of the case, because the action was personal only to the wife and abated with her death. In Markham v. Cobbe (3) Sir William Jones, in 1626, held that "after conviction" upon an indictment "for felony, the action did not lie because it is found to be felony by the verdict and inquest, and the party shall not be admitted now to make that trespass," but Doderidge and Whitelock were in favor of the plaintiff, because the plea did not aver that the plaintiff had given evidence upon the prosecution, so as thereby to have entitled himself to restitution upon conviction, under the statute 21 Hen. 8. In support of the second view there are a vast number of dicta of judges of the highest authority, but little or nothing of decisive authority. In Dawkes v. Coveneigh (), in 1652, which was an action for damages after the conviction of the defendant for breaking the house of Dawkes and taking £250, Chief Justice Roll, denying that the trespass was drowned in the felony, said, "This is after conviction, and so is here no fear that the felon shall not be tryed; but if it were before conviction the action would not lye for the danger the felon might not be tried, and there is no inconvenience if the action do lye." Sir Mathew Hale's treatise upon the pleas of the Crown (), published after his death in 1681, in treating of the three means of restitution of goods stolen, viz., 1, By appeal of robbery; 2, By statute 21 Hen. 8, c. 11; and 3, By course of common law, says of the last that after conviction trover (1) Yelv., 89. () Noy., 18. (3) Sir W. Jones, 147; Noy., 82. (5) 1 Hale, P. C., 546. 1881 Midland Insurance Co. v. Smith. Q.B.D. lies, but that if a man feloniously steal goods, and before prosecution by indictment the party robbed brings trover, it 570] lies not, for so felonies should be healed, and for this he cites Dawkes v. Coveneigh () and Markham v. Cobbe () above referred to: The case of Hudson v. Lee (3), in 1589, seems to be a still earlier example of an action having been maintained for a felony. In Crosby v. Leng ('), decided in 1810, the plaintiff brought his action for that which proved to be a felonious assault, for which the defendant had been previously indicted, tried, and acquitted; there was a verdict for the plaintiff, subject to the opinion of the court upon the question whether, after an acquittal, an action lay, and Lord Ellenborough, in giving judgment in the plaintiff's favor, said, "The policy of the law requires that before the party injured by any felonious act can seek civil redress for it, the matter should be heard and disposed of before the proper criminal tribunal, in order that the justice of the country may be first satisfied in respect to the public offerce-if the acquittal be shown either in pleading or by evidence to have been obtained by collusion it would be put aside, and the objection would still remain." The defendant, however, could not have set up his own felony by way of plea in bar, as was decided in Lutterell v. Reynell (). It may not be immaterial to notice that in the year 1819, by statute 59 Geo. 3, c. 46, the writ of appeal of felony, which was the ancient process by which the private suitor sought redress for his individual injury, was abolished on account of the oppressive nature of the proceedings under it. In the case of Gimson v. Woodfull (), which was an action of trover for a mare stolen from the plaintiff by one from whom the defendant bought her, Chief Justice Best nonsuited the plaintiff, saying, I am of opinion that the plaintiff has done nothing that he ought to have done. I take the law to be this,-you must do your duty to the public before you seek a benefit to yourself, and then there is no necessity for a civil action.” This case, which was decided in the year 1825, is an express decision in point, but it was, as a decision, overruled in White v. Spettique (). In 1827 the question was discussed in the Court of King's Bench in the case of Stone v. Marsh (*), which was an issue out of Chancery directed to try 571] *the right of the plaintiffs, the proprietors of some (1) Sty., 346. (*) Noy., 82. (3) Rep., 43a. (*) 12 East, 409. (5) 1 Mod., 282. (6) 2 C. & P., 41. Q.B.D. Midland Insurance Co. v. Smith. 1881 bank stock, against the defendants, who had innocently received the proceeds through a power of attorney forged by Fauntleroy for the transfer of the stock. Lord Tenterden, in giving judgment in the plaintiff's favor, said, "Can the House set up this felony as an answer to the plaintiff's claim? In general a man cannot defend against à demand by showing on his part that it arose out of his own misconduct, according to the maxim, Nemo allegans suam turpitudinem est audiendus.' There is, indeed, another rule of the law of England, viz., that a man shall not be allowed to make a felony the foundation of a civil action, not that he shall not maintain a civil action to recover from a third and innocent person that which has been feloniously taken from him, but that he shall not sue the felon, and it may be admitted that he shall not sue others together with the felon in a proceeding to which the felon is a necessary party, and wherein his claim appears by his own showing to be founded on the felony of the defendant. The rule is founded in public policy," which "requires that offenders against the law shall be brought to justice, and for that reason a man is not permitted to abstain from prosecuting an offender by receiving back stolen property or any equivalent or composition for a felony without suit, and of course cannot be allowed to maintain a suit for such a purpose." In 1845 the case of White v. Spettigue (') was tried before Lord Cranworth. This was an action of trover brought by a solicitor against a bookseller, who had innocently purchased, and afterwards sold, certain books which had been stolen from the plaintiff. The learned judge told the jury that there was no evidence to show who stole the books, and the property in the goods, being originally in the plaintiff, could not be taken out of him by any act of a third party, and he directed them to find for the plaintiff, unless they believed the defendant received them knowing them to have been stolen, in which case the right would then merge in the felony, and the plaintiff would not be entitled to recover. The jury having found for the plaintiff, the defendant moved for a new trial on the ground of misdirection, citing Gimson v. Woodfull (3) as directly in point; and Lord Cranworth, in expressing his dissent from the ruling in Gimson [572 v. Woodfull() as being too general, said: "I think the true principle is, that where a criminal, and consequently an injurious, act towards the public has been committed, which is also a civil injury to a party, that party shall not be permitted to seek redress for the civil injury to the prejudice (1) 13 M. & W., 603. (2) 2 C. & P., 41. 1881 Midland Insurance Co. v. Smith. Q.B.D. of public justice, and to waive the felony and go for the conversion." It was also considered that under the pleas, which were not guilty and not possessed, the point was not open to the defendant, and Lord Cranworth concluded by saying, "With respect to what I said at the trial, that if the defendant had been the guilty receiver of the books he would be entitled to the verdict, I must retract that and suspend my judgment on that point, as I entertain some doubt whether I was correct." This case, although it overrules Gimson v. Woodfull (') as a decision, leaves the point under discussion undetermined. The next reported decision seems to be Wellock v. Constantine () in 1863. That was an action by the plaintiff, a young woman, "for that the defendant assaulted and foreibly violated her person and debauched her, whereby she became pregnant." The case came on for trial before Willes, J., when, after the plaintiff's evidence proving the forcible connection, it was objected for the defendant that the action was not maintainable, and the learned judge so ruled, stating "if a rape was proved, that could not form the subject of a civil action, but the plaintiff must proceed criminally, and if the connection took place with the consent of the plaintiff no action would lie." A rule nisi for a new trial having been obtained was afterwards discharged, Pollock, C. B., saying, "The ground upon which the nonsuit proceeded was, that after it appeared that the civil wrong complained of, and for which a civil remedy was sought by action, involved a charge for felony, the proper course was not to proceed with the trial, but to prosecute for the criminal offence." Bramwell, B., concurred, but Martin, B., dissented from their decision. This is a very strong and decisive decision, because, bearing in mind that the declaration stated on the face of it that the injury complained of amounted to a felony, and the only plea was not guilty, even the doctrine of merger would scarcely seem to justify 573] a judge at nisi prius in nonsuiting a plaintiff upon the mere issue of not guilty; but the nonsuit was upheld and the decision was affirmed. The question arose again in a very similar form in the case of Wells v. Abrahams in 1872 (). This was an action of trover for a brooch; pleas, not guilty and not possessed; at the trial before Lush, J., the evidence showed a felonions taking; after a verdict for the plaintiff, the defendant having obtained a rule nisi for a new trial upon the ground (1) 2 C. & P., 41. (2) 2 H. & C., 146; 82 L. J. (C.P.), 285. (3) Law Rep., 7 Q. B., 554, Q.B.D. Midland Insurance Co. v. Smith. 1881 that the act complained of proved to be a felony, and therefore that the action would not lie, this rule was discharged upon the ground that the judge, as a mere commissioner of nisi prius, could only try the issues joined, and had no power to direct a verdict for the defendant against positive and affirmative evidence in favor of the plaintiff. Cockburn, C.J., said: "No doubt it has been long established as the law of England that 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. But although this is the rule, it becomes a different question when we have to consider how it is to be enforced. It may be that if a person neglecting his duty to prosecute for an offence committed against him were to bring an action instead of prosecuting, the court might be called upon to intervene and to prevent the plaintiff obtaining by judgment and execution the fruits of the action thus improperly brought." Lord Blackburn was of the same opinion, and said: "While the law throws the prosecution of criminal offences on private individuals, it may be in some cases that the civil remedy is suspended until there has been a prosecution for the felony. If an action were brought against a defendant, and it was stated by the Attorney-General, on behalf of the Crown, that criminal proceedings were pending, and the action was brought with an intention of compromising the felony, the court might, in the exercise of its summary jurisdiction, stay proceedings in the action until the indictment for felony had been tried." His Lordship, after reviewing the authorities, expressed his disapproval of the nonsuit in Wellock v. Constantine ('), and stated that that case could not be treated as an authority. *Lush, J., assented, [574 upon the ground that the judge at nisi prius could only try the issues joined, and that it was not competent to him to interpose and stop the case in manner suggested; that if the declaration disclosed that which made it bad on demurrer or in arrest of judgment, that would not justify the judge at the trial in stopping the case. This case, although it actually decided no more than that a judge of nisi prius had no power to do more than decide the issues joined upon the record, tended strongly in the direction of proving that practically a civil action for damages might be maintained for a wrongful act amounting to a felony. The defendant could not plead his felony, the judge could only try the (1) 2 II. & C., 146. |