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Action.

28 Sect.

This rule is based on the grounds of public policy (c) and at one time it appears to have been thought that the right of action was (as was said) actually " merged," or " drowned," in the felony (d). It seems clear, however, that the true view is that it is merely suspended (e).

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Felonious Torts.

39. The rule was acted upon in a case where a servant, suing her master for assault, pleaded and proved a rape, for which he had not been prosecuted, the judge nonsuiting the plaintiff, and the Court, with hesitation, upholding his decision (/) but in a later case, where the conversion alleged appeared upon the evidence to amount to a felony, it was held that the judge was right in declining to nonsuit (^), and subsequently it was also held that a statement of claim, showing the cause of action to be a felony, was not demurrable on that ground (/i). At the present date, therefore, it is doubtful whether the rule is of any practical importance, since it seems clear that the defendant cannot raise the point in his pleadings (i). Nevertheless it would appear to be unsafe to ignore the existence of the rule and it is submitted that, if in any particular case the evidence disclosed a felony in respect of which the plaintiff clearly ought to institute a prosecution, the judge might properly postpone the trial until this had been done. It must be remembered in this connection that a judge's duty is no longer

Application of rule.





confined to the bare trial of issues

(/r)

But the prosecution need not result in a conviction {Crosby 12 East, 409; Dudley Banking Co. v. Spittle {I860), 1 Jo. &

succeeding notes. V. Le}t(j (1810),

H.

14)."

So it was said in an action for trover arising out of a theft that if such we an action could be maintained before the felon had been prosecuted, " should have no more criminal prosecutions you must do your duty to the public before you seek a benefit to yourself" [Gimson v. Woodfull (1825), 2 0. (c)

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P. 41, per Best, C.J.). e.g., dicta in Markham v. Cohb (1626), W. Jones, 147; Higgins v. Butcher (1606), Yelv. 89 Baiokes v. Coveneigh (1652), Sty. 346. (e) See per Watkin Williams, J., in Midland Insurance Co. v. Smith (1881), 6 Q. B. D. 561, at p. 568: *'The history of the question shows that it has at different times and by different authorities been resolved in three distinct ways. First, it has been considered that the private wrong and injury has been entirely merged and drowned in the public wrong, and therefore no cause cf action ever arose or could arise. Secondly, it was thought 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. Thirdly, it has been said 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. In opinion this last view is the correct one." (/) Wellock V. Constantine (1863), 2 H. & C. 146. {g) Wells V. Abrahams (1872), L. E. 7 Q. B. 554. {h) Boope V. D'Avigdor (1883), 10 Q. B. D. 412, cited with approval in Appleby V. Franklin (1885), 17 Q. B. D. 93. See Lutterell {%) For "nemo allegans suam turpitudinem est audiendus." V. Eeynell (1670), 1 Mod. Eep. 282, cited with approval in Wells v. Abrahams, supra. {k) As it was at the date of Wells v. Abrahams. See Wightivickv. Pope, [1902J 2 K. B. 100. {d) See,



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