White v. Fort, 10 N.C. 251, 3 Hawks 251 (1824)

Dec. 1824 · Supreme Court of North Carolina
10 N.C. 251, 3 Hawks 251

White v. Fort.

I I From Northampton, j

The merger of a trespass in the felony (when the trespass is a felony,) is a doctrine of the English law, founded not on policy, but on the king’s right by forfeiture; and as forfeiture is not here a consequence of felony, or, at any rate, if it be, is never asserted, the. doctrine does not apply in this state.

Trespass vi et armis, in which the jury below found a verdict for the plaintiff, subject to the opinion of the Court on a point reserved, which is as follows:

This was an action to recover damages of the defendant for the burning a tavern house and the furniture therein, privately in the night, which belonged to the plaintiff, and which stood a short distance from the house in which the plaintiff and Ms wife lodged. Doctor. Smith, who lived with the plaintiff, slept in the tavern bouse; and it was the building in which travellers slept, *252who tarried with the plaintiff. The plaintiff had preferred to the grand jury a bill of indictment against the defendant, for arson in burning the house, which was returned “not a time bill.” No other proceedings crimi-naliter were had upon the charge, and the plaintiff brought this action. The point reserved is, whether it be not necessary to the maintenance of this action, that the defendant be either convicted, or acquitted, by a trial before a petit jury? "Whereupon, by the Court (Daniel, Judge,) it is considered that it is necessary to the maintenance of the action, that the defendant be either convicted or acquitted, by a trial before a petit jury, on an indictment for felony; and, therefore, judgment was rendered for the defendant, and plaintiff appealed.

Hillman for the plaintiff.

By the ancient common law, the trespass, where the offence amounted to a felony, was completely merged in the felony, and the only remedy which the party injured had, was by appealing the felon of the felony. (4 Black.Com. 362. 3 Inst. 242.)

But all this doctrine of merger, both in its ancient absolute, and in its modern qualified sense, is to be traced to feudal principles, and is the consequence of the law of forfeiture.

The very term felony is of feudal origin, and comprehends every species of crime which occasioned, at common law, the forfeiture of lands or goods. (4 Black. Com. 94.

Felony, and the act of forfeiture to the lord, are synonymous terms. (Ibid 97.)

Sir William Blackstone, adopting the opinion of Sir Henry Spelman, derives it from two northern words; fee, signifying a fief, feud, or beneficiary estate, and Ion, signifying the price or value. Felony is, therefore, says he, the same as pretium feudi, the consideration for which a man gives up hjs fief: as we say in common speech; *253In this sense it will cleai'ly signify the feodal forfeiture or act by which an estate is forfeited, or escheats to the lord. (Ibid 95, 60 In England, even to this day, the idea of forfeiture always accompanies the term oí felony, because it is a necessary incident of it. In this country we mean, however, by the term felony nothing more than the grade of the offence, considered as a crime. The idea of forfeiture never once occurs to the mind as a necessary incident of felony. We know nothing of the con-nexion between felony and forfeiture, from practical observation, and only as we trace it in the history of the laws of that nation from which we borrow most of our notions of jurisprudence. But it is not from the derivation or meaning of the term alone, that I would argue that merger is the consequence of forfeiture. The principles of the common law upon the subject of merger, as developed by the books, are all plainly deducible from the law of forfeiture. The authorities from Blackstone and Coke, before cited, show, that the only remedy which the party injured had at common law, was his appeal, in which, upon conviction, he was entitled to judgment of restitution only. This merely restored to him, and was-intended to restore to him, his own property only, of which he had been feloniously deprived.

In case the property had been wasted or destroyed, so that it could not be reached by the judgment or writ of restitution, he was entitled to no equivalent by receiving the value in damages out of the estate of the felon, even upon conviction. In fact, if he omitted to set forth any of his own property of which he had been feloniously deprived, that also was confiscated to the king or the lord, and he only had judgment of restitution of what he actually set forth in his appeal. (1 Hale P. C. 538.)

It seems that the forfeiture extended not only to his own goods, but to such as he had in possession at the time, and which he had stolen. (2 Hawkins P. C. 638-. sec. 9. in note.)

*254This was certainly the case with regard to any particular goods which the felon had feloniously obtained, when he was convicted of the felony upon an indictment at the suit of the king, before he was appealed for the felony at the suit of the party; because anterfoia attaint de mesme le mort was a good plea to any subsequent appeal at the suit of the party in such case, though not vice versa. (3 Inst. 213.) The reason of the rule is very obvious. By the conviction the goods and chattels were forfeited to the king; and by the attainder the lands were also forfeited; and this forfeiture had relation back to the time of the offence committed, so as to avoid all intermediate charges and conveyances. (4 Black. Com. 386.) It would have been worse than useless, it would have been absurd, to have given the action, when the only funds out of Avhich it could have been satisfied was already absorbed by the crown.

Thus stood the law until the passage of 21 Henry 8, eh. 11. It will be seen upon examination, that very little regard Avas paid to the rights of the subject when they came in collision with those of the king. The party injured was entitled to no relief, except by appeal, when upon conviction he was only entitled to judgment of restitution; if he omitted any of the goods in his appeal, of which he had been feloniously deprived, they were forfeited to the king, as well as the goods of the felon; if the felon was attainted of the felony upon an indictment at the suit of the king, before appeal, the appeal was barred, and he was without remedy altogether; if the property feloniously taken was wasted or destroyed, his appeal availed him nothing; and if upon the appeal he failed to convict the offender, by statute Westminster, 13 Edvc. 1. C. 12. he was to suffer one year’s imprisonment, pay a fine to the king, and make restitution to the party in damages for the imprisonment and infamy which he had sustained. (4 Black. Com. 316.) This was not all. It permitted the party injured to pursue thet property inf» *255market overt and wrest it by liis writ of restitution. (1 Hale P. C. 543.) The innocent purchaser who had possessed himself of the property, had to yield it to the royal prerogative, after attainder of the felony, by the relation which the attainder had to the commission of tké crime. (4 Black. Com. 386.)

The books are full of cases which show that when the rights of the subject came in collision with those of the crown, the former were always made to yield to the latter; but I believe the authorities already cited abundantly prove that it was the royal prerogative of forfeiture, and not the policy of the law in preventing the public justice of the country from being defeated, which absorbed the rights of the subject in those of the sovereign, in cases of felony.

What alteration did the 21 Henry 8.. di. 11. make in the law upon this subject? The only effect of that statute was, to give restitution upon indictment in the same manner in which it had been given at the common law in cases of appeal. It gave no satisfaction in damages, out of the property of the felon, in case the goods had been wasted or destroyed. The reason is obvious; the law of forfeiture was the same as before. All the estate of the felon was forfeited by the felony. They could, therefore, give nothing more to the party than authority to retake his own property. Neither the parliament of Henry 8th. or the officina justitise (which is competent to frame a writ to suit the justice of any case between individual and individual,) were able to devise any more effectual mode of redressing the losses of the injured party, where the of-fence by which he had been injured was of that grade to which forfeiture attached, than by giving him a judgment or writ of restitution of his own property, which was subject to all the casualties before mentioned. The action for damages has grown out of the construction of this 'Statute; but it has been so restricted as not to interfere with the right of forfeiture. _ In England, the action can*256not be sustained after conviction, unless the felon has been pardoned or admitted to his clergy. (4 Black, Com. 363. 1 Hale P, C. 546.) I am not aware of any decision, even in England, where it has been ruled that there must either be a conviction or an acquittal by a petit jury before the action can be sustained. Blackstone says, the action lies not before prosecution, for so felonies would be healed. ¡4 Com. 363.) Lord Hale says, that the action of trover does not lie until prosecution by indictment. Unless the words “prosecution,” or “prosecution by indictment,” have a different meaning as applicable to this subject from their ordinary meaning, I apprehend they can hardly be held to mean a conviction or acquittal by a petit jury; that is to say, their meaning is not confined to that. We generally say, aúnan has been prosecuted, and by indictment too, when an indictment lias been preferred against him, although the indictment may have been insufficient, or may have been returned ignoramus” by the grand jury. (Buller JV*. P. 13.) We generally understand that a man is acquitted or discharged, when he is no longer held in recognizance, but is permitted to go without day. I am aware of the case of Crosby v. Long, (12 East 409.) but that was not a question whether the acquittal by a petit jury was necessary to enable the party to sustain his action, but whether, after such acquittal, the action could be brought? All that the court decided in that case was, that the action did lie; but if they had decided that an acquittal by a petit jury was necessary, it would only have been in conformity with the principles which I have before endeavored to lay down. If the felon were once acquitted by a petit jury, upon a bona fide prosecution, he could never after-wards be tried for the same felony. The king could never afterwards have any claim upon his estate as forfeited. The acquittal would be conclusive as to that. The rights of the party injured would, therefore, not come in collision with those of the crown. An additional argument, to *257«how that I am correct,, is drawn from the fact, that in no offence which is not attended with forfeiture, does the trespass .merge. But if I am incorrect, the rulé can only be considered as a rule of policy, and is certainly satisfied, in this country, when the party injured has, with good faith, preferred an indictment and failed. By destroying the civil remedy, you invite to the compounding of felonies, for the injured party would be strongly tempted to hush up the criminal prosecution-on condition of indemnity for his own loss. In fact, the rule, as contended for on behalf of the defendant, would amount to a denial of justice to many, of the citizens residing in counties bordering on other slates. It would be a kind of licence to plunder and burn with impunity, to those offenders who would go deep enough in crime to make the offence a felony, and would have the precaution to have only those present who reside beyond the limits of the state. and would keep out of the reach of its process. If the. party prosecutes he fails, because he has no means of enforcing the attendance of witnesses, and because their depositions, if taken, could not be read in the trial of a criminal cause. If he sues, the defendant says, “ I am not a mere trespasser, I am a felon; the state has a claim upon my life, and she must be first served before your complaint is heard,” and he would be turned out of Court. If this were the case, who would prosecute? who would sue? The policy of this country would certainly be to give a freer scope to the civil action.

The more the subject was agitated, the more likely would our grand jurors be to make presentment. If the case turned out to be a felony upon the trial, the Court would direct the defendant to be bound over to answer the criminal charge. “The policy of the rule, as laid down in Crosby v. Long, is to prevent the public justice »f the country from being defeated.” I think I have shown that the rule is founded in no such principle, unless, indeed, the filling the king’s coffers out of those of his sub*258jects, was a part of the criminal justice of the country. When it is recollected that the only remedy which the common law gave the party injured was the appeal, hoAy precarious and uncertain was his chance of remuneration, even if he'succeeded in convicting the defendant, and in what heavy penalties he was mulcted in case of failure, it must be evident that it is founded in the royal prerogative of forfeiture, of which the merger is a consequence. But even admitting it be a rule of policy, that rule is satisfied when the party has done all in his power to prosecute the offender to conviction. It is not his fault that the indictment is not found. He can neither compel the attendance of witnesses in all cases, or control the conduct of grand jurors.

But there is another point. The case does not charge the burning to have been done feloniously; and without that charge, it only alleges a civil trespass. This is all that was submitted by the issues, was all that was found by the jury, and is, therefore, all that can be said to have been proved. The judge, it is true, reserved the point of law, whether it be not necessary, to the maintenance of this action, that the defendant be either convicted or acquitted by a trial before a petit jury? And the judge considers, upon the finding of the jury, that it is necessary to the maintenance of the action that the defendant be. either convicted or acquitted by a trial before a petit jury upon an indictment for the felony, and therefore rendered judgment for the defendant. Instead of charging the jury as to what was necessary to constitute a felony in point of law; instead of instructing them, that if they believed, from the evidence, that a felony had been committed, that then this action could not be supported, unless the plaintiff had shown them that he had previously prosecuted the defendant-to a conviction or an acquittal before a petit jury; he reserves the point of law, without any such instructions or any such finding, and upon the finding of the jury he considers that it is necessary that the defend*259ant be either convicted or acquitted by a trial before a petit jury upon an indictment for the felony. No felony is alleged in the declaration,, none is pleaded by the defendant, and therefore none is submitted to the jury by the issues, or found by them in their verdict. The case of Cook v. Darky, (4 Mumford 444.) is yery much in point with this case. (Taylor’s Rep. 58.)

Seawcll, for defendants.

'Lord Ellenkorough, in Crosky v. Long, (12 East 413.) says, “that the policy of the law requires,, that before the injured party can seek redress,. the matter should be heard and disposed of befóte the proper criminal tribunal, in order that the justice of the country may be satisfied in respect of the public offence.”

Day ley, Justice, in the same case,, says, that when acquitted, the defendant cannot again be questioned.

After conviction, the prosecutor should recover his goods, because he has prosecuted the law, and it is nú mischief to the commonwealth. (1 Hale 546.) A nol. pros. is no acquittal of the. crime; it is merely permission to depart for the present. Goddard v. Smith, (Salk. 21.)

The word acquitted, has a definite meaning, and where used it must be understood in the legal sense, namely, ky a jury on the trial. See the opinion of Duller, in Morgan v. Hughes, (2 Term R. 225.)

Persons coming into the possession of stolen goods,are not bound to surrender them before conviction of the felon; it would take away the incitement to convict, which it was the intention of the legislature to give by the 21 Henry 8. Per Grose, Justice, in Harwood v.- Smith, (2. Term R. 756.) Policy, therefore, is the true ground of the rule. But it is said that the rules of the common law do not apply in this country, and that the one now contended for is a remnant of the feudal system. To this it is enough to reply by asking, if there is no existing law *260of escheat supported only by the common law? Escheat is a relict of the feudal system.

But the fact is, that this rule of the common law does not result from feudal principles: but, as has been remarked, is a rule of common law policy to prevent the-stifling or healing.of prosecutions, by making it the míe-mi as well as duty of every member of the community to bring to trial all perpetrators of felony.

At common law, the party injured might retake his goods, unless in favour of the felon, or a title had been cast upon some other person, or by their becoming waived by the felon upon pursuit; or the party injured might prosecute his appeal, and in case of conviction, he was entitled before judgment to restitution,- if it was found that he made fresh pursuit, which consisted in his giving notice of the felony, and entering his appeal within á year and a day. The party injured could then bring his action if necessary, because he had prosecuted the law-against the felon; but before prosecution he could not, for no felonies should be healed. (1 Hale '546. and the authorities there cited.)

But it is contended that the party has done, in this case, all in his power to bring the defendant before the proper tribunal, when the ends of public justice are to be satisfied; that he has preferred a bill of indictment, which the grand jury would not find to be a true bill. This arr gument is felo de se. How can it be supposed that a case ever will or can happen, in which a party can procure evidence sufficient to obtain a verdict, establishing a fact amounting to felony, to entitle him to damages; and yet that on the same evidence, a grand jury would refuse to find a bill? Such a case never has happened, and never will occur,' if the prosecutor’s exertions are honest..

The policy of -the law operates as a double shield to the defendant; it affords the highest evidence of its foresight and wisdom: it will not tolerate a presumption that jurors, acting upon oath, will eitiier forget or refuse tó *261perform their duty; it will not permit any man to bring his civil action to recover damages for an act which amounts to felony, until he has first prosecuted the offender, and either convicted him or failed after putting Mm upon his trial. And in a case where the act complained of, if done, amounts to a felony, if the grand jury refuse to find the bill, the law will not deem it possible that, on the same evidence, the plaintiff can have a right to recover in a civil action. The refusal of the jury in this case to find the bill, can be accounted for in but one of two ways; either that the prosecutor did not offer all the evidence which he adduced in his civil action, or because, in point of fact, the defendant is innocent of the charge. If he withheld, or suppressed the evidence, he is particeps cri-minis, he is guilty of an offence and ought not to recover; if he was indifferent in respect to the public justice of the country, and was disposed to make a faint show of patri-. otism, the present is a fit occasion to amerce him for his false clamour. The defendant in this case stands constructively innocent, and is not answerable till convicted or acquitted.

That the law of forfeiture, in cases of felony, exists in North Carolina, may be gathered from the fact that, in 1787, an act was passed to charge the estate of Honorie (3-eroud, of Halifax, with the payment of all his just debts, and to prefer the same to the title acquired by the state in the property which was Geroud’s, in consequence of his self murder; and the second section of the act abolishes forfeitures in case of suicide: and in the year 1792, the legislature relinquished the claim of the stato to the property of Samuel Fuller, who was executed for murder.

Gaston, in reply, contended,

1. That it did not sufficiently appear upon the pleadings, that any felony had been committed; for unless the burning were wilful or malicious, it was no felony. (3 Ghitty G. If. .1104, 5. A Mum. 444. 1 Mod. 282, 3.)

*2622. That the plaintiff had done all in his power; the finding of the grand jury was an acquittal. (1 Chitty C. L. 324. 4 Bl, Com. 306. Crown Cir. Comp. 7.)

No action will lie for malicious prosecution until discharge or acquittal; yet if a bill be returned not a true bill, this is such a discharge as will authorize bringing the action. (2 Phill. 111. 1 Salk. 14. Cro. Jac. 490.)

3. The doctrine of merger does not apply in this country. The English rule is, that the civil remedy shall be deferred until the claim of the public be determined by the proper tribunal; and is doubtless founded on the conflict between the royal claim to forfeiture and the individual claim to compensation. We have no forfeitures , except in cases of high treason. It has never been in use here. Excusable homicide, se defcndo, is a felony that works forfeiture, (4 Bl. Com. 94.) yet it here is settled law, that it is justifiable.

The forms of our courts, when a prisoner is given in charge to a petit jury, are different from those of England. The only inquiry here is as to the felony. It is a cruel as well as unusual punishment.

Taylor, Chief Justice.

The two objections taken to the plaintiff’s recovery are, that the civil trespass is merged in the felony, a prosecution for which ought first to have been regularly had to the conviction or acquittal of the defendant; and that the rejection of the bill by the grand jury is not a sufficient compliance with the law, to enable the plaintiff to maintain the action.

It is difficult to ascertain with precision, the source whence the doctrine of merger was derived. As it exists only in those cases, where forfeiture is the consequence of attainder, or conviction, a presumption is furnished that the primary object wras to cause persons to prosecute crimes, and thereby to increase the resources of the crown; on the other hand, as forfeitures were annexed only to the higher crimes, treason and felony, the *263suppression of which was most essential to the peace and welfare of society, the civil remedy may have been suspended, in order \o prompt the injured to bring offenders to justice; not to increase the treasure of the sovereign, but to guard society against the effects of these more aggravated, and, in early ages, more frequent offences. Many offences below the grade of felony, are now more dangerous to society than many felonies; and when it is inquired, why the civil remedy is not suspended in them until the offender is brought to trial criminally, the answer is, such offences have grown out of the artificial state of society, and were unknown to the rude simplicity of its early condition. In that, robbery and rapine were the crimes to be punished; in its more advanced stages, artifice and fraud.

Whatever may have been the origin of the rule, there are ample proofs scattered through the books, of its having been a fixed rule of the common law, before the period of our revolution; and that, in cases of conviction, trover or trespass would lie against the wrong doer. The principle of the action is referred to the policy of effecting the punishment of felons, and preventing the injured party from compounding them. (Lojj’t 90.) There are dicto, but no adjudged case, countenancing a suit after acquittal, until that cited from 12 East. What is said in that case is so strong, and to my mind unanswerable.. as to conclude the question. “ All the cases which show that an action lies after the conviction of the defendant for the felony, apply strongly in support of it after acquittal; for it is a stronger case to permit the party injured to proceed upon his civil remedy to recover damages after a conviction of the offender, when the law has, by means of the forfeiture of his property consequent xvpon a conviction, taken away from him the means of satisfying the damages. Besides, when a defendant, after an acquittal of the felony, is called upon to make recompense in civil damages to the party grieved, it *264would be stranger for him to be permitted to allege that he was not properly acquitted, than in the case it would be to allege, that he had not been properly convicted. And here the defendant cannot say, against the record of acquittal, that this was a felony.”

If this suspension of the remedy was the consequence of forfeiture alone, I should hold that it had no existence here; but I cannot satisfy myself that it is so. On the contrary, it appears to me to be one among the many inducements held out by the general policy of the criminal law, for persons to prosecute. The rewards and immunities given to persons who bring offenders to justice, as well in cases where there is no forfeiture, as where there is, aiford abundant proofs of this policy. I cannot think that forfeiture has had any force in this state since 1778, when it was declared what part of the common law should be in force here. It is not probable that a prerogative should be designedly introduced, which a most devoted, but at the same timé an enlightened, supporter Of the throne, pronounced an “odious one.” {Lofft 90.) It was introduced originally to increase the king’s ordinary revenue, a branch of which it constituted; and if such means of increasing the revenues of the state rightfully existed, it would not have been overlooked by the succession of able men, who have filled the office of attorney general at different periods. Yet, with the exception of the confiscations and attainders (luring the war, not a single instance has occurred in the memory of any one, wherein a forfeiture has been exacted. Yet some unfortunate persons have fallen victims to the law, leaving wealth, which is now enjoyed by their posterity. I lay no stress on the two acts which have been passed, suggested, no doubt, by the fears of relations and creditors, and obtained from abundant caution. They ought not to be considered as legislative declarations that forfeitures existed, for every one knows how little interest is taken in private acts generally.

*265As to the manner in which the injured party shall prosecute, it is vain to search the books, because instances of suit after acquittal have only recently occurred. All that good sénse and reason seem to require is, that the matter should be first heard and disposed of before a Criminal tribunal- If the party prefer an accusation in good faith, although the bill should be rejected by the grand jury, he has done as much as he can do towards prosecuting, and has satisfied the policy of the rule. In England he might have his appeal, but here he can do nothing more than has been done in this case. I think the plaintiff is entitled to judgment.

Hall, Judge.

It cannot he denied but that forfeiture for felony was part of the laws of England; and that the law in that respect, except so far as related to suicide, has not been altered by the laws of this state: but I believe there is no instance where the state has ever availed herself of the right which accrued by forfeiture; no mode has been pointed out by law to make the right available; no commissioners of forfeited property have been appointed, as has been done in regard to escheated property, and as was done in regard to confiscated property during the revolutionary war. If, therefore, the enforcement of the right of forfeiture was the reason why the creditor of the felon could not recover in England, that reason will not hold good in this country.

The law in regard to lands, had relation to the time of the fact committed; in regard to goods and chattels, to conviction of the felon. (4 Bl. 387.) It is said, in the same book, “ that in gross and atrocious injuries, the private wrong was swallowed up in the public; that satisfaction. to the individual was seldom made, the satisfaction to the public being so very great; that as the public crime is not otherwise avenged than by forfeiture of life and property, it is impossible afterwards to make reparation for the private wrong, which can only be had *266from the body or goods of the aggressor,” In England, after forfeiture, there is nothing left for the creditors of the felon. In this state, the fund out of which creditors may expect payment, has never, as far as I know, been diminished.

But it is said that the law is founded in policy, which postpones or suspends the claims of individuals until the acquittal or conviction of the person charged witli the felony, (12 East 409,) for otherwise felony would go unpunished. (1 Hale 546.)

The same evidence which showed a felony had been committed, ivas also the foundation of the king’s claim by forfeiture; and to this claim of the king, that of the individual ivas obliged to yield, until the question was settled whether a felony had been committed or not. If a felony had been committed, the claim of the individual was hopeless, for the reason before given; if no felony was committed, the king’s claim was at an end, and the individual was at liberty to pursue the aggressor by suit. This appears to me to be the true reason why the suit of the individual ivas suspended until the issue of the prosecution for felony was known. Policy does not suspend the individual’s right of suing, where offences are committed that are not felonies: as in perjury, forgery, or even in capital cases that are not declared felonies. (4 BL 97.} If, then, policy dictated the rule, it was a policy intimately connected with and strongly allied to the king’s interest to forfeitures upon conviction. But in England, when the king’s claim was at an end, the individual’s claim was available: so, I think, in this state, when the public asserts no claim by forfeiture, the claim of the citizen should be available.

But if I am mistaken as to this rule of policy, the record states that the plaintiff, by consent of the attorney general, preferred a bill of indictment against the defendant, and the grand jury returned it not a true bill;” and they did so, for aught that appears to this Court, *267without any collusion or fraud on the part of the plaintiff. That being the fact, I think, in the spirit of that rule of policy, he is entitled to his action. The grand jury were the only and proper tribunal from which a prosecution for the felony could originate. The plaintiff had no control over their finding.

It is true that finding is no bar to another prosecution; but if the plaintiff has acted without fraud, and no other witnesses can be procured to go before the grand jury, it is conclusive on him. As to the objection, that the same evidence which has enabled the plaintiff to recover this verdict, would have induced the grand jury to find the bill of indictment “ a true bill,” I cannot give any solution or explanation which I know to be founded in fact; but I can readily conjecture how such a thing might happen: witnesses must go before the grand jury in person, hut if they cannot be procured, their depositions, under certain circumstances, may be read on a trial in a civil action.

The case of Goddard v. Smith, (1 Salk. 21.) has been read, to show that it was not sufficient that the bill of indictment should have been returned « not a true bill;” but that there should have been either a conviction or acquittal upon it. That was an action for a malicious prosecution, whore the plaintiff alleged in his declaration that he was in due form of law acquitted on the indictment. The record showed that a nolle prosequi had been entered; the Court said, the record did not support the declaration, for the nolle prosequi was a discharge from the indictment, but not an acquittal of the crime. But they did not say, that if it had been set forth in the declaration that a nolle prosequi had been entered, and the record had supported that allegation, that the plaintiff could not go on with his suit, because the prosecution hád not been finally decided upon.

I think the plaintiff is entitled to judgment.

*268Henderson, Judge.'

If A steals the goods of B and' sells them to C, B may recover the goods of C before A is convicted or acquitted of the felony; but if B sells the goods to C in market overt, B could not, at common law, recover the property either before or after the conviction of A; for the sale in market overt changed the property; in neither case, that is, either before or after the conviction, at common law, could A recover them of B the thief. If policy and not forfeiture occasioned the merger, why could B sustain his action against C, where they were not sold in market overt, and not against A? Policy requires the conviction or acquittal of A, as much in the case where the goods are found in the possession of C, as when found in A’s possession. If policy alone governed, the inducement to prosecute offenders should operate in both cases; there is as much necessity in the one case as the other. But at the common law there was no inducement to prosecute to a conviction, for before the statute of Hen. 8. the goods were lost to the owner upon a conviction; the former owner could not reclaim them even from the thief; it was his interest to prosecute, but not to convict. What had policy, then, to do with encouraging an honest prosecution? It was on the other side. But that statute repeals the common law, in cases where the former owner aids in the prosecution, by awarding a restitution; but the law of merger was in force long before the passing of this statute, and it is the influence of this statute which sustains the owner’s right to the goods after a sale in market overt, for it gives restitution of the goods; it acts in rein, on the thing, and annuls the common law effect of a sale in market overt. By the Statute of Hen. 8. the property is ordered to be restored to the owner who aids in the prosecution, and it is his whenever found, and under whatever circumstances. Upon a conviction, in an appeal of robbery, the appellant might obtain his goods, if in the hands of the felon, but before the statute, it affected not sales in market overt. *269The statute may since have been extended to convictions on appeal. I have not examined, nor is it necessary in this case. This is almost enough, if not quite, to prove that the law of merger is not founded on policy alone. But farther, it is confined in its operation to cases of felony, that is, to cases of forfeiture; for all felonies amount to a forfeiture: are thei’e then no other crimes which the policy of the law forbids being compromised, or where inducements should not be held out for a prose* eution? Forgery, perjury, every species of the crimen falsi, heresy, which latter was punished with death? In none of these is there a merger. For what reason are not some of them as atrocious as the lesser larcenies; for instance, petty larceny, or even the stealing above the value of twelve pence? Why, then, does the law of merger not prevail in that case? Because there is no forfeiture. When we see the law of merger invariably follow the law of forfeiture, as the shadow does the substance, and never find it where forfeiture is not, it is a strong reason to believe that it is founded upon it, and grows out of it. For it is a maxim in most governments, at least it is so in England, that where the rights of an individual conflict with the rights or claims of the sovereign, that the rights of the individual must give way; and as by forfeiture all the goods of a felon are forfeited to the king, even those which were the subject of the prosecution, and for the stealing of which he was convicted, to sustain an action against him would impair the rights of the crown, as thereby the fund to he forfeited upon conviction would be lessened. If policy forbids the action, I should think it might be pleaded, and yet we find no such plea; for it appears to me that the maxim nemo aucliendus est suam turpitudinem allegare, does not apply to such cases where policy forbids the act, for it is better that a man should shield himself by his own infamy, than that the public policy should be violated. The manner in which it is got at shows that *270it forms no defence; that the sovereignty acts without regard to the defendant’s benefit. If it appears in the declaration, the defendant demurs; this is not offering this as defence, it already appears: the demurrer calls the attention of the Court to it. So if moved ip arrest of judgment; but it is never pleaded. If it appears by the evidence on the trial, the Court (that the rights of the crown may not be diminished) directs the jury to acquit the defendant. Upon the whole, I think that forfeiture, and not policy alone, gave rise to the doctrine of merger.

Whether the law of forfeiture is still in force, in cases where the state insist on such light, I think it is entirely unnecessary to decide. But I am not disposed to postpone doing justice to the plaintiff, in expectation that by so doing I shall impair the rights of the state, by lessening the felon’s estate, when the state comes to claim the. forfeiture; for it would be a vain and fruitless expectation, for the state has not, for at least half a century, and perhaps for a much longer time, in a single instance, asserted that right. Therefore I say, whatever may be her actual rights if she thought proper to enforce them, I cannot consent to delay doing justice to this plaintiff, lest I should interfere with the claims of the State, when, from the former consent of the state, it is' reduced to a moral certainty that no such claim will be asserted.

I do not think it necccssary to give any opinion on the other point, to wit, that even if the rule of merger be founded on policy, that enough has been done by the plaintiff in causing a bill of indictment to be preferred against the defendant, which the grand jury refused to find; but would observe, that if, in England, an acquittal before the petit jury was required, that such rule might not apply here; for there, if the attorney general will not prosecute, or the grand jury will not find a bill, yet the person injured may still bring the offender before a petit jury by a prosecution entirely under his control) *271.fo wit, an appeal; and that the most rigorous policy could not require more in either country than the utmost exertions of the injured party to bring the offender to justice. In this country, the injured party’s utmost efforts end with an honest exertion before the attorney general, or before the grand jury. In England more may he required of him, because there he can do more, a trial before a petit jury, for by his own act he can effect that; But for the reasons given in the foregoing part of this -.opinion, I think that the judgment of the Court below should be reversed, and judgment given for the plaintiff.

I am aware that Lord Ellenborough, in 12 East, founds 'the doctrine on policy. Whatever falls from that great .judge deserves great weight; but it is a mere dictum, not necessary to the decision of the case, it being an action brought to recoArer damages for an injury received by ' stabbing. The judge reported that it was within the statute, and therefore a felony, but the defendant had been acquitted; the question Avas, could the action be sustained? It Avas adjudged that it could; for let it be. founded on forfeiture or policy, there was no merger; the acquittal barred future prosecutions, therefore there could be no forfeiture. The policy of the law was complied with, for - there had been a prosecution, and if not conducted with, good faith, it might be shoAvn. See 2 Term Sep. 750, Harwood v. Smith.

Offences made capital by statute and not declared to be felonies, do not cause the trespass to merge, hut where it is made a felony they do.

I think that judgment should he rendered, fqr thq plaintiff.