PISCATAQUA BANK v. TURNLEY, 1 Miles 312

The opinion of the Court was delivered by Jones, J. Two questions have been discussed in this case, which it is not necessary now to decide: 1st. Whether the felony does not merge or extinguish the civil injury, or at least suspend the remedy until the defendant shall have been prosecuted for the crime. 2d, Whether any action ex contractu can be maintained for the cause set forth in the affidavits. Still, as these questions have been raised, we take occasion to say, it is by no means clear that this rule could be supported on either of these grounds.

The principle that a felony merges a trespass is not coeval with the common law. Bracton, lib. 3, c. 32; Fleta, lib. 1, c. 38; Stannford's, P. C., lib. 1, c. 15; Doctor & Student, Dial. 2, ch. 54, at the end; Markham v. Cobb, Wm Jones's Rep. 147, per Doddridge & Whitlock. It appears to have been introduced in connection with, and in aid of, the law of forfeiture of goods, of waifs, fresh suits, &c., a portion of the common law which was never received in Pennsylvania.

Yet, notwithstanding the rigour with which forfeitures were formerly exacted in England, the party injured was always allowed his remedy for the particular wrong by appeal (or action of felony as Stamford calls it), which was a proceeding of a mixed character, having respect to public justice as well as the private wrong, though it differed materially from proceedings by indictment. This remedy has never been resorted to in Pennsylvania, and is altogether at variance with the spirit of our institutions.

The rule was afterwards modified in England, so as merely to suspend the remedy of the party until the felon should be prosecuted for the crime. 1 Chitly’s Prac. 10, and cases cited. This change in the rule appears to have been a consequence of the statute 21 lien. 8, c. 11, which gives to the party injured a right to have his goods again, after conviction upon an indictment; on condition, however, that he procures the conviction of the felon by his own evidence, or by the evidence of others. Markham v. Cobb, Wm Jones's Rep. 148.

The qualified right given by the statute to the party, appears to be the origin of the modern rule, which is supported on principles of public policy, as evinced by the statute, and supposed to be indispensable to the ends of public justice. Master v. Miller, 4 T. Rep. 332, per Butter, J. That statute was never in force in Pennsylvania, nor has the right of the party in this state, to have his goods again, ever been suspended upon any such condition. Admitting however that the rule, in either form, exists in this state, it cannot be applied to the case under consideration.

The larceny mentioned in the affidavits filed in this case, was committed in Massachusetts, and the rule, if it exists here, can have respect only to the criminal laws of this state. To make it the means of enforcing the criminal laws of another state or country would, in effect, make the civil courts of the commonwealth police agents for the world. Besides, the rule in England does not appear to be extended to felonies by statute. Dyer’s Rep. 50; but see Proctor v. Berry, 1 Barnes’s Notes 450.

Although the justice of this discrimination may perhaps be questioned in regard to the criminal laws of the particular state, still if we are to give the rule an extra-territorial effect, it will not be contended that is to be used as a means of enforcing every arbitrary foreign police regulation of a criminal character. Yet no discrimination can be made, except between felonies at common law and felonies by statute, and by that discrimination, this case, immoral as is the act imputed to the defendant, would be excluded. Rex v. Westbeer, 8 Co. Rep. 33; 2 Strang.

Rep. 1133, 1137; Act of the 5th of April 1790, sect. 5. Nor is it clear that the rule which allows a party to waive a tort is inapplicable to this case. If it should be decided that the rule itself is not in force in this state, it would seem to follow, that the party might deal with the act of the defendant in this case as with any other mere trespass. The crime and the trespass are diverso in-tuitu ; the former respects only the public. The animus furandi adds nothing to the private injury, though it is the only matter of public concern. Doctor and Student, Dial. 2, ch. 54, p. 281; 4 Bl.

Comm. 5, 6; Latch 145; Wm Jones’s Rep. 149. But we do not decide these questions. An insuperable difficulty in the plaintiff’s way arises from the act of 1705. The use of the process of attachment for the commencement of an action is not commensurate with that of summons. It is limited, in respect to persons, to non residents, and in respect to the cause of action, to debts contracted or owing, which, by the

interpretation of the courts, is extended to all actions arising ex contractu but no further. The cause of action shown in this case is not of this description. The action of debt is founded upon an express contract, and it lies by reason of a breach of contract. 1 Esp. Dig. 172; 2 Dall. 173; 2 Rolle’s Rep. 441; 2 Wash. C. C. Rep. 386; 2 Brown’s Rep., App. 38. In this case the action arises ex delicto, from a tort committed under circumstances and with an intent which amounts to crime. It is not an answer to say that the plaintiff may waive the tort.

Perhaps he may do so, as it respects the action, (although that is a point which we do not decide) still he cannot do so as it respects this process. The reason is, the act of 1705 does not apply to the form of the action, but to the cause of the action. The form of the action may be debt, indebitatus assumpsit, or on the case, but the cause of the action must arise from a contract. The argument that the act is remedial and should be liberally construed in favour of the remedy, may be answered from the

preamble of the act itself. It recites that “ the effects of persons absenting are not equally liable with those of persons dwelling upon the spot, to make restitution for debts contracted, &c., to the great injury of the inhabitants,” and then provides for the defect in respect to liabilities arising from the breach of contracts. Beyond that the legislature did not see proper to go; and we have no power further to supply the defect by enlarging the use of this process. Rule absolute.