John H. Illies, Plaintiff in Error, vs. Isaac D. Knight, Defendant in Error, 3 Tex. 312

Mr. Justice Wheeleb delivered the opinion of the court. In support of the jurisdiction of the Harris district court, we are referred, on behalf of the defendant in errror, to the fou/rth exception in the 5th

section of the act of 1836, “ establishing the jurisdiction and powers of the district courts.” [1 Stat. 200, sec. 5.] This

section provides that “no person shall be sued out of the county in which he may reside, except in the following cases,” one of which, and the one relied on in this case, is “fourth, in a case where the defendant has ■committed some crime or offense for which a prosecution, or civil action in damages, may be commenced.” Does the petition, in the case before us, implicate the defendant in the commission of a crime or offense of the description contemplated by the exception?

The legislature appear to have had in view the legal principle that, for certain crimes, a civil action may be maintained, either before, or simultaneously with, a criminal prosecution; while, for others, no civil action can be maintained until after the conviction or acquittal of the offender.

And it was, we think, in reference to this distinction that they framed the exception in question, and employed the alternative expression, “ a prosecution, or civil action in damages; ” meaning to indicate and include by the -exception that class of indictable offences in which the civil action is not merged, or wholly taken away from the party 'injured, by the crime against the public. An offense is defined to be “an act committed against a law, or omitted where the law requires it, and punishable by it.” [2 Tom. L. Dic. 664; 4 Jac. L.

Dic. 432.] In the present instance, this word was used, we think, to denote a crime/ and these words, in legal use, are, properly speaking, synonymous. [4 Bl. Com. 5.] When the statute speaks of a party as having “committed” an offense, we understand a crime; and when it employs the word “ crime or offense,” we understand these as mere synonymous terms, or as expressive of different degrees of crime. To commit an offense is, in legal parlance, to be guilty of a crime.

The words crime and offense are used in the law books as convertible terms; and the latter word is so often employed, both in the common, and our statute law, to denote crime of every degree, as to render quite unneccessary any particular reference. [Const.

(1836) Dec. of Eights, see. 9; 1 Stat. (1836) p. 193, secs. 41, 45, 51.] The words offense and. offender are constantly employed in the statutes to indicate the actions and persons implicated in the commission of crimes. The word offense, it is true, in its ordinary acceptation, embraces very many acts which are less than crimes. But it is not to its popular, but to its legal, signification that we must look, to determine its meaning in the present instance.

In one sense it may be said to be an offense not to pay a debt, or discharge a duty according to promise; and, in alike sense, in may be said to be “ an offense for which a civil action in damages may be commenced,” to commit a breach of covenant, or to do or omit any act or duty, under such circumstances as will lay a foundation for an action sounding in damages. Tet it will not be contended that, for every such offense, a party is liable to be sued in a county other than that of his residence. That would be to convert the exception into the general rule.

It is not perceived that, as regards the present inquiry, there is any difference in principle between this case and any other action sounding in damages. If the word offense in the statute is to be extended in signification so as to include in the exception a ease like the present, it is difficult to perceive why it must not, at least, include all actions for injuries arising ex delicto, or torts. Had this been intended, the 8th exception in the same

section of the statute would have been omitted. It cannot admit of doubt, we think, when duly considered, that the word offense was used in the statute as synonymous with crime. •'Where, therefore, the acts coni plained of do not amount to a crime, the case is not within the exception.

In a case like the present, where the petition discloses the fact that the defendant is sued in a county other than that of his residence, and where, therefore, prima facie, the suit appears not to have been brought in the proper county, it is incumbent on the plaintiff to state facts importing the commission of a crime by the defendant. It must appear upon the face of the petition that tbe case is witbin tbe exception. The petition must charge the defendant with acts indictable. Is this the case presented by the petition before us ? That it is not seems to be conceded.

The petition charges a trespass to persona] property; technically, at common law, trespass de bonis asportatis. Bat an injury to personal property, though committed with actual force, is not indictable at common law, unless accompanied with a breach of the peace. [3 Verm. 344; 4 Comyn’s Dig. p. 389, title “Indictment,” letter E.; Bacon’s Abr. tit. “ Indictment,” E.; 10 Yerger, 261.] The petition concludes its statement of the cause of action with the words “ against the peace,” etc., but this is stated rather by way of inference than averment.

It was, doubtless, borrowed from the form of a common law declaration in trespass, where it is always employed [1 Chit. Pl. 191]; and evidently was intended, not as the averment of a breach of the peace, or of any act or acts importing an actual breach of the peace, but simply as an inference or conclusion from the facts before stated, and cannot be regarded as having added anything to the previous statement. Had the plaintiff intended to charge a breach of the peace, he should have stated the acts in which it consisted.

But that such was not his intention is evident, and the facts disclosed by the proofs show that no breach of the peace, or other indictable offense, could truly have been charged or > ascribed to the acts of the defendant. The case, therefore, did not come within the exception relied on to support the right of the plaintiff, to maintain his action against the defendant in a county other than that of his residence. The objection, being a personal privilege, was well taken by an exception to the petition in the nature of a plea in abatement; and the court erred in overruling the exception.

The conclusion to which we have arrived upon this question dispenses with the necessity of considering the other questions presented in argument. ¥e are of opinion that the judgment be reversed, and the cause, dismissed.