Nowlan v. Griffin. it otherwise, they should not have taken the notes in payment, or should have inserted a clause in their policies for their protection, in relation to the payment of premiums generally, as they have in cases of loss. The bill does not present a case involving a consideration of continuation clause. Demurrer sustained. Bill dismissed with costs. APPLETON, C. J., DICKERSON, DANFORTH and LIBBEY, JJ., concurred. NOWLAN V. GRIFFIN. (68 Me. 235.) Action for assault. The civil remedy of a person injured by a felonious assault and battery is not suspended till the offender has been prosecuted criminally. (See note, p. 46.) TRESPASS, wherein the plaintiff, in writ dated October 10, 1875, threw her down violently, and by force and against her will had carnal intercourse with her, and testified at the trial to all the facts constituting the crime of rape; and there was no other evidence. The presiding justice, on the defendant's motion, ordered a nonsuit; and the plaintiff alleged exceptions. M. P. Frank (with W. Purves), for plaintiff. F. N. Dow (with whom was J. D. Fessenden), for defendant. WALTON, J. The only question is whether it is the law of this State that the civil remedy of a person injured by a felonious assault and battery is suspended till the offender has been prosecuted criminally. Clearly not. In Boody v. Keating, 4 Me. 164, and again in Crowell v. Merrick, 19 id. 392, the court say that the rule that a civil action in behalf of the party injured is suspended until a criminal prosecution has been commenced and disposed of, "is limited to larcenies and robberies." Nowlan v. Griffin. The same opinion had before been expressed in Boardman v. Gore, 15 Mass. 331, 336. In Boston & Worcester R. R. Co. v. Dana, 1 Gray, 83, where the defendant had made himself comparatively rich by stealing from the railroad company, the question was fully examined, and the court held that, while it is undoubtedly the law in England that the civil remedy of the party injured by a felony is suspended till after the termination of a criminal prosecution against the offender, such had never been the law here. And such is the prevailing opinion in this country. B. & W. R. R. Co. v. Dana, 1 Gray, 83; Pettingill v. Rideout, 6 N. H. 454; Piscataqua Bank v. Turnley, 1 Miles, 312; Foster v. Commonwealth, 8 W. & S. 77; Cross v. Guthery, 2 Root, 90; Patton v. Freeman, Coxe, 113; Hepburn's case, 3 Bland, 114; Allison v. Farmers' Bank, 6 Rand, 223; White v. Fort, 3 Hawks, 251; Robinson v. Culp, 1 Const. 231; Story v. Hammond, 4 Ohio, 376; Ballew v. Alexander, 6 Humph. 433; Lofton v. Vogles, 17 Ind. 105; Boardman v. Gore, 15 Mass. 331, 338; Howk v. Minnick, 19 Ohio St. 462; s. c., 2 Am. Rep. 413. Our bill of rights declares that "every person, for an injury done him in his person, reputation, property, or immunities, shall have remedy by due course of law; and that right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay." Art. 1, § 19. To require an injured party to await the action of the grand jury and the county attorney (persons over whom he has no control) before allowing him to prosecute a civil suit, would certainly conflict with the spirit, if not the very letter, of this provision. The rule has never been acted upon in this State except in cases of larceny; and the legislature abrogated its application to such cases more than thirty years ago. Act 1844, ch. 102; R. S., ch. 120, § 12. We think the plaintiff may maintain her action, if the proof is in other respects sufficient, notwithstanding her injury may have been the result of a felonious assault and battery, for which the offender has not yet been prosecuted criminally. Exceptions sustained. New trial granted. APPLETON, C. C., Barrows, VIRGIN, PETERS and LIBBEY, JJ., concurred. NOTE BY THE REPORTER.— Bishop (1 Cr. L., § 264) lays down this rule : "Therefore, as general doctrine, subject to qualifications and exceptions, a private person and the State Nowlan v. Griffin. may severally carry on, the one a civil suit and the other a criminal prosecution, simultaneously, for the same act of wrong, if both have suffered from it; or the one proceeding may go in advance of the other, or, there may be but the one, and the one will have no effect on the other." Citing 12 Co. 128; Blessingame v. Glaves, 6 B. Monr. 38; Harrison v. Chiles, 3 Litt. 194; Wheatley v. Thorn, 23 Miss. 62; Kennedy v. McArthur, 5 Ala. 151; State ▼. Stein, 1 Rich. 189; Drake v. Lowell, 18 Metc. 292; Rex v. Spiller, 2 Show. 207; Reg. v. Best, 6 Mod. 137; Rex v. Stanton, 2 Show. 30; Foster v. Commonwealth, 8 W. & S. 77; Simpson v. State, 10 Yerg. 525; Thayer v. Boyle, 30 Me. 475; State v. Rowley, 12 Conn. 101: Shields v. Yonge, 15 Ga. 349; Hedges v. Price, 2 W. Va. 192; Commonwealth v. Elliott, 2 Mass. 372; Commonwealth v. Bliss, 1 id. 32; Phillips v. Kelly, 29 Ala. 628; Gordon v. Hostetter, 37 N. Y. 99. (In New York, however, it is regulated by statute.) An action for assault or nuisance may proceed at the same time with the indictment therefor. Jones v. Clay, 1 B. & P. 191; Burrows v. Pixley, 1 Root, 362; U. S. v. New Bedford Bridge, 1 Woodb. & M. 401; Allen v. Lyon, 2 Root, 213; Abbott v. Mills, 3 Vt. 521; Franklin Co. v. White Water Valley Canal, 2 Ind. 162; Francis v. Schoellkopf, 53 N. Y. 152; Harvard College v. Stearns, 15 Gray, 1. "When one has suffered from felony, he cannot maintain against the felon a civil action for the injury, until he has discharged his duty to the public by carrying on, or at least by setting on foot, a criminal prosecution for the public wrong. If the felon is either convicted, or, without the plaintiff's fault or collusion, acquitted, or if the plaintiff has presented to the grand jury a bill which was thrown out, this is sufficient, and he may then maintain the action." 1 Bish. Cr. L., § 267, citing Higgins v. Butcher, Yelv. (Met. ed.) 8 and note; 1 Hale's P. C. 546; Crosby v. Leng, 12 East, 409; Golightly v. Reynolds, Lofft. 88; White v. Fort, 3 Hawks, 251; Belknap v. Milliken, 23 Me. 381; Foster v. Tucker, 8 Greenl. 458; Morgan v. Rhodes, 1 Stew. 70; McGrew v. Cato, Minor, 8; Grafton Bank v. Flanders, 4 N. H. 239; Crowell v. Merrick, 19 Me. 392; Broom's Leg. Max. (2d ed.) 159; Patton v. Freeman, Coxe, 113; Morton v. Bradley, 27 Ala. 640; Middleton v. Holmes, Port. 424. It is sufficient if another has prosecuted the felon to conviction; Chowne v. Baylis, 31 Beav. 351; or if one indictment is nol. pros.'d, conviction having been had on another; Dudley and West Bromwich Banking Co. v. Spittle, 1 Johns. & H. 14. In some States the English doctrine referred to in the principal case is held, as in Alabama; Morgan v. Rhodes, 1 Stew. 70; McGrew v. Cato, Minor, 8; Morton v. Bradley, 27 Ala. 640; Bell v. Troy, 85 id. 184; and possibly in New Hampshire; Grafton v. Flanders, 4 N H. 239; Pettingill v. Rideout, 6 id. 454. In Maine and early in Massachusetts the rule was restricted to robbery and larceny, as stated in the principal case; Crowell v. Merrick, 19 Me. 392; Belknap v. Milliken, 23 id. 881; Foster v. Tucker, 3 Greenl. 458; Boody v. Keating, 4 id. 164; Boardman v. Gore, 15 Mass. 331; but a subsequent statute removed the disability. The English doctrine is denied in South Carolina; Cannon v. Burris, 1 Hill, 372; Robinson v. Culp, 1 Tread. 231. In Massachusetts; Boston and Worcester R. R. Co. v. Dana, 1 Gray, 83. In Mississippi; Newell v. Cowan, 30 Miss. 492. In Tennessee; Ballew ▼. Alexander, 6 Hump. 433. In Connecticut it is limited to capital felonies; Cross v. Guthery, 2 Root, 90; in Georgia to common-law felonies; Adams v. Barrett, 5 Ga. 404; Nea v. Farmer, 9 id. 555; Dacy v. Gay, 16 id. 203. In other States the English doctrine seems to be denied ; as in New Jersey ; Patton v. Freeman, Coxe, 113. In Virginia; Allison v. Farmers' Bank, 6 Rand, 204, Cook v. Darby, 4 Munf. 444. In North Carolina; White v. Fort, 3 Hawks, 251; Smith v. Weaver, Taylor, 58; 2 Hayw. 108. In Missouri; Nash v. Primm, 1 Mo. 178; Mann v. Trabue, id. 709. In Michigan; obiter, Hyatt v. Adams, 16 Mich. 180. In Texas; Mitchell v. Mims, 8 Tex. 6. In Arkansas and New York the civil suit is authorized by statute; Brunson v. Martin, 17 Ark. 270; Van Duzer v. Howe, 21 N. Y. 581. See 1 Bish. Cr. L., § 270. A recent writer in the Irish Law Times has learnedly treated the subject; 13 I. L. T. 141, 151, 169. He says that in some of the earlier Irish cases "it was held that, if the evidence were such as to satisfy the judge that the defendant might properly be tried and convicted of felony (Hayes v. Smith, Sm. & Bat. 378), the right of civil action would be suspended, and the judge should nonsuit the plaintiff (or a county court judge should dismiss without prejudice): Quinlan v. Barber, Batty, 47; Gordon v. Fluskey, Arm. Mac. &0. 155. And to the same effect are the early English cases of Dawkes v. Coveneigh, Nowlan v. Griffin. Styles, 346; Markham v. Cobb, W. Jones, 147, and Crosby v. Leng, 12 East, 409; and more recently, Gimson v. Woodful, 2 C. & P. 41, and Wellock v. Constantine, 2 H. & C. 146 ; 32 L. J. Ex. 285; although in the oldest case on the subject the civil right had been spoken of as wholly merged in the felony: Higgins v. Butcher, Yelv. 89; and see Cor v. Parton, 17 Ves. Jr. 329, and The Princess Royal,' L. R., 3 A. & E. 41. But, however vaguely enunciated, and applied with such little certainty as it appears to have been from the reported cases, there has been, at all events, a current of authority establishing the existence, in some shape or other, of a doctrine, in English law that the vindication of the civil rights of a private individual must be postponed till after public justice had been satisfied by criminal proceedings: Stone v. Marsh, 6 B. & C. 551; Guthrie v. Fisk, 5 D. & R. 24; Prosser v. Rowe, 2 C. & P. 421; Ex parte Bolland, Mont. & M. 315; 1 M. & A 570; 3 id. 39; Keating v Marsh, 1 id. 582; Ex parte Jones, 2 id. 193; 8 D. & C. 525; Ex parte Shaw, 1 Mad. 598; Desborough v. Homes, 1 F. & F.6; Chowne v. Baylis, 31 Beav. 351; 31 L. J. Ch. 757; Ex parte Elliott, 3 Mont. & Ayr. 110; Dudley and West Bromwich Banking Co. v. Spittle, 1 J. & H.14; Wells v. Abrahams, L. R., 7 Q. B. 554 ; Rourke v. Mealy, 13 Ir. L. T. Rep. 52; while it would not apply to actions against persons other than the criminal; White v. Spettigue, 13 M. & W. 603 (referred to 6 Ir. L. T. 637, in commentary on Loughnan v. Barry, 6 Ir. L. T. Rep. 186); Lee v. Bayes, 18 C. B. 599; Osborn v. Gillett, L. R., 8 Ex. 88; nor does it apply to actions brought under Lord CAMPBELL's Act, 9 & 10 Vict., ch. 93; Osborn v. Gillett, ubi supra; nor would it seem to apply to an action in rem: The Princess Royal,' L. R.. 3 A. & E. 41; and it applies only where the charge amounts to felony, but not where it is merely misdemeanor; Fissington v. Hutchinson, 15 L. T. (N. S.) 390; R. v. Hardey, 14 Q. B. 541. In America, on the other hand, while in Boardman v. Gore, 15 Mass. 331; Boody v. Keating, 4 Me. 164, and Crowell v. Merrick, 19 id. 392, it had been held that the civil remedy was suspended, but that the application of the doctrine was limited to cases of larcenies and robberies, the prevailing and most recent opinion is that it is not requisite for 'an injured party to await the action of the grand jury and the county attorney (persons over whom he has no control) before allowing him to prosecute a civil suit ;' Nowian v. Griffin, printed in note to Hegarty v. Shine, 13 Ir. L. T. Rep. 4, and cases there collected. But in England there was no dispute as to the existence of the doctrine, save a doubt not so much expressed by BLACKBURN, J., as to be inferred from what he said in Wells v. Abraham (ubi supra), in 1872, until in the recent case of Ex parte Ball, in re Shepherd (Court of Appeals, March 6, 1879), BRAMWELL, L. J., observed that the great difficulties in applying the alleged law go a long way to justify Mr. Justice BLACKBURN's doubt. Wells v. Abraham, however, may be taken as, at all events, establishing that it would be wrong for the judge to nonsuit in such cases- BLACKBURN, J., observing that, in reference to this matter, Wellock v. Constantine could not be treated as an authority, and that Gimson v. Woodful had been overruled by White v. Spettigue.' In the English Court of Appeals on the 6th March, 1879, in Ex parte Ball, Re Shepherd, 40 Law Times Rep. (N. S.) 141, the question arose on the following facts: A banker's clerk embezzled money and absconded. The banker did not apply for a warrant for his apprehension until ten days after the discovery of the crime, and by that time the clerk had left England, and consequently was never prosecuted. The clerk was adjudicated a bankrupt in his absence, and the banker tendered a proof in the bankruptcy for the amount of which he had been defrauded. The proof was rejected by the trustee in the bankruptcy, and the broker having filed a liquidation petition, the trustee in the liquidation applied to the Court of Bankruptcy for an order that the proof should be admitted. The chief judge in bankruptcy held that the proof must be admitted and this was affirmed by the Court of Appeals, but on different grounds. BRAMWELL, L. J., with whom JAMES, L. J., concurred, placed his judgment on the ground that though the banker might not have been entitled to prove for a debt arising out of a felony in respect to which he had not prosecuted the felon (which quære), the obligation of prosecuting the felon was a personal one, and did not extend to the trustee in the banker's liquidation, who represented, not him, but his creditors. While BAGGALLAY, L. J., rested his decision upon the ground assigned by the chief judge below, namely, that the rule which prevents an injured person from obtaining civil redress for a criminal wrong, if he has failed in his duty of bringing the felon to justice, does not apply where prosecution has become impossible by reason of (amongst other things) the felon's escape from the jurisdiction before he could have been prosecuted by Nowlan v. Griffin. the exercise of reasonable diligence. In delivering his judgment BRAMWELL, L. J., said "that the law on this subject is in a remarkable state. For 300 years it has been said in various ways by judges, many of the greatest eminence, without a doubt, except in one instance, that there is some impediment to the maintenance of an action for a debt arising in this way. The doubt is that not so much expressed by BLACKBURN, J., in Well v. Abrahams, 26 L. T. Rep. (N. S.) 433; L. R., 7 Q. B. 554, as to be inferred from what he said. But though such opinion has been entertained and expressed for all this time, there are but two cases in which it has operated to prevent the debt being enforced. These two cases are Wellock v Constantine, 2 H. & C. 146, and Ex parte Elliott, 3 Mont. & Ayr. 110. After considering these cases and the impediments which might be conceived for the enforcement of such a debt, the Lord Justice remarked: "All these cases create great difficulties in my mind in the application of this alleged law, and go a long way to justify Mr. Justice BLACKBURN's doubt. Still, after the continued expression of opinion in the cases of Ex parte Elliott and Wellock v. Constantine, I should hesitate to say that there is no practical law as alleged by the respondent." But he thought it was not necessary to do so in that case for the reason given above as the ground of his judgment. BAGGALLAY, L. J., said: "It appears to me that the following propositions are affirmed by the authorities, many of which, however, are dicta or enunciations of principle rather than decisions: (1) That a felonious act may give rise to a maintainable action; (2) that the cause of action arises upon the commission of the offense; (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 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 injured by a similar offense, as in Fauntleroy's case (Stone v. Marsh, 6 B. & C. 551), or in which prosecution is impossible by reason of the death of the offender, or of his escape from the jurisdiction before a prosecution could have been commenced by the exercise of reasonable diligence; (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." The court for the reason that "a grave question of principle" was involved granted leave to appeal to the House of Lords. 64 Another very recent and interesting case is the Australian case of In re Herdson (2 New Zealand Jur. [N. S.] 221). There it appeared that Herdson, a clerk employed by the manager of a building society, had "unlawfully appropriated to his own use' money belonging to his employer as manager, and had absconded and left the colony. A petition to have him adjudged bankrupt, founded on the act of bankruptcy by so absconding, was presented by the manager and the trustee of the society, in respect of the debt so contracted, and the debtor thereupon showed cause why he should not be adjudged bankrupt, on the ground, inter alia, that the petitioning creditors should, in the first instance, have taken steps to prosecute him for the embezzlement appearing on the face of the petition. "Do you think the policy of the law amounts to this," asked JOHNSTON, J., “that supposing a man goes away to India, or elsewhere, under circumstances like the present, with no intention whatever of returning, therefore the property he leaves behind him must be forever tied up!" Such is the effect of the law," replied Herdson's counsel. As the report is not generally accessible in this country, we shall quote at some length from the judgment delivered. "The question now arises," said JOHNSTON, J., "whether, admitting the court would have power to interfere summarily to stay proceedings if an action had been brought against Herdson for the moneys which he is alleged to have embezzled, the present proceedings are in the nature of a civil remedy within the terms of the rule of law. But it seems unnecessary to decide this question, as I have come to the conclusion that, even if the rule is aplicable in such cases, it ought not to be applied in the present case. I think it is clear from the language of the judges in Wells v. Abraham, and especially that of Mr. Justice BLACKBURN, that when the doctrine is applicable, the court is not necessarily bound to apply it by stopping the proceedings; and, in determining whether it should be applied in this particular case, I think it right to revert for a moment to the reasons upon which the doctrine is founded. Those reasons seem to be: First, that it is of more importance to the general welfare of the community that a public wrong should not go unpunished, than that the private injury of an individual should be redressed; next, that it is the duty of persons who suffer from the felonious acts of others to institute criminal proVOL. XXVIII-7 |