Faeser defines tort as “Tort is an infringement of a right in rem of a private individual giving of compensation at the suit of the injured party”.
A crime is an invasion of public rights and duties affecting the whole society or community.
Felony means a crime of any kind which is legally graver than misdemeanors that are aggravated assault as contrasted with simple assault. Felony comprises of every species of crime which at common law occasioned a forfeiture of land or goods. Treason was a species of a felony.
Felonious means Criminal where an act is both a tort and a felony that is a crime, it is called a felonious tort.
The same wrongful act may sometimes constitute both a tort and a crime example., assault, defamation, malicious prosecution, and so on.
Assault is a civil wrong, a tort, when looked at from the point of view of an individual, it being a violation of the right of every person to his personal safety being protected. But at the same time, such an act of violence is looked upon as a menace to the safety of society generally.
It will therefore be punished by the state as a crime. In all such cases, there are two different kinds of remedies as civil and criminal., the wrongdoer may be punished criminally and also compelled in a civil action to pay the damages to the aggrieved party.
In England the doctrine of ‘merger of tort in felony’ prevailed for a considerable time, but later on it was modified and it was held that the civil remedy was suspended until the wrongdoer was prosecuted. This rule prevailed prior to 1967. Thus, the rule which prevailed till 1967 was that an action for damages based on a felonious act of the defendant was not maintainable until the defendant was prosecuted , or alternatively, a reasonable excuse was shown for his not having prosecuted.
In Swith v. Selwyn 1914 3 KB 98[1], It was held that where a suit was filed without instituting criminal prosecution against the wrongdoer the civil proceedings for tort would have be stayed.
Under this rule that the civil remedy was suspended until the wrongdoer was prosecuted, the following five exceptions were made.
In simple meaning in these five cases of felonious torts, a civil suit for damages was maintainable even if there is no criminal proceedings.
- Cases of misdemeanors
- Cases where the plaintiff was not the person injured by the felonious act of the defendant. This can happen when, for instance, a father sues for the seduction of his daughter.
- Where the defendant himself is not the person guilty of the crime, this can happen when for instance stolen goods are recovered from an innocent purchaser, though the thief is not yet caught.
- Cases where, despite the due diligence of the plaintiff, prosecution of the offender has not been possible, as for instance, when the latter has escaped and is not traceable.
- Suits brought under the English Fatal Accidents Act 1846.
Nevertheless, this common rule has now been abolished in England by the Criminal Justice Act, 1967.
In India, the rule that the civil remedy was suspended until the wrongdoer was prosecuted has not been accepted, and it has been held in many cases that an injured person can maintain an action for damages for a wrongful act, even though it amounts to a crime, without in the first instance instituting criminal proceedings against the offender. Therefore in India, there is no law which requires an injured person to institute criminal proceedings before bringing his action in tort.
[1] Swith v. Selwyn 1914 3 KB 98
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