Page:Halsbury Laws of England v1 1907.pdf/251

 —— Suspension of Right of Action.

Part V.

29

Sect. 3; In any event the rule applies only to the party injured by Felonious the felonious act, who owes a duty to the public to prosecute the Torts, offender (/), and then only if his claim arises directly out of the one who has apply to sustained not does it felonious act (m) Limitsof consequential damages (n). Thus it does not suspend the right of a application ^'^^l®trustee in bankruptcy to recover an indebtedness caused by the commission of a felony, for the trustee represents the creditors generally, and not the person who directly suffered by the felonious act, and upon whom personally is thrown the duty of prosecution (o) nor is the right of the party actually injured affected where his action is brought against an innocent third party, e.g., a purchaser from the thief (p). Again, it has no application in cases where the offender has been Where brought to justice at the instance of one or more injured by a prosecution ^• ^"^P*^^^^ similar offence (q), or where prosecution is impossible by reason of the death of the offender (?'), or by reason of his escape from the jurisdiction before prosecution could have been commenced by the use of reasonable diligence (s). It is specially provided that an action under the Fatal Accidents Act, 1846 (0, shall be maintainable although the death of the person in question shall have been caused under circumstances amounting



in law to a felony.

There

is

no similar rule in the case

of

misdemeanours

(u).

Conviction for Treason or Felony.

Sect. 4.

40. At common law a person attainted of treason or felony was At common considered ciuiliter mortuus, and could not maintain an action (z;). Attainder and forfeiture for treason or felony were abolished by Forfeiture but after defining a "convict" as a person Act, 1870.. statute in ISIO (w)

Franklin (1885), 17 Q. B. D. 93 Oshorti v. Oillett (1873), (/) AppUhij V. L. E. 8 Ex. 88. (m) Ex parte Leslie, Re Guerrier (1882), 20 Ch. D. 131. (n) Appleby v. Franklin, supra, in which case a parent sued for the seduction of a child, and the statement of claim alleged that subsequently to the seduction the defendant administered to the girl noxious drugs for the purpose of procuring abortion. See also Oshorn v. GiJJett, supra. (o) Ex parte Ball, Re Shepherd (1879), 10 Ch. D. 667. See also Ex parte

&

A. 110. Elliott (1837), 3 Mont. (p) Stone V. Marsh (1827), 6 B.

& C. 551 White v. Spettigue (1845), 13 M. & Woodfall (1825), 2 C. & P. 41 Marsh v. Keating (1834), 1 Bing. (i^. c.) 198; Xee y. Bayes and Robinson (1856), 18 C. B. 599. {q) Ex parte Ball, Re Shepherd, supra; Ex parte Jones (1833), 2 Mont. & A. 193; BJx parte Elliott, supra; Marsh v. Keating, supra; Wellock v. Constantine Choione v. Baylis (1862), 31 Beav. 351. (1863), 2 H. & 0. 146 (r) Ex parte Ball, Re Shepherd, supra ; Wickham v. Gatrill (1854), 2 Sm. & G. 353; Stone v. Marsh, supra; Ex parte Bolland (1828), Mont. & M. 315;

W.

H03, overruling

Gimson

v.





'



Ex parte Jones, (s) Ex parte

supra.

Be Shepherd, supra ; Ex parte Elliott, supra ; Marsh v. Keating, supra ; Wellock v. Constantine, supra. {t) 9 & 10 Yict. c. 93, s. 1. _^(w) The Hercules (1819), 2 Dods. 353; Fissington y. Hutchinson (1866), Ic Ball,

{v) SeeCo. Litt. 128, 130 a; Fleming v. Smith (1861), 12 Ir. C. L. R. 404; Bnl/ock V. Dodds (1819), 2 B. & Aid. 258. Apart from the fact of his personal disability, many of his causes of action had passed by forfeiture to the Crown. {iv) Forfeiture Act, 1870 (33 & 34 Vict. c. 23).