Odger's English Common Law

ought to repress ;
a tort and a crime.
THE NATURE OF A CRIME. 105
in other words, the same act may be both
Thus a forcible entry upon land, or an assault, is clearly indictable ; it
will as clearly give to the injured party a remedy by action. Again, in
many cases proceedings may be taken against a libeller either by indictment
or by action. An offence is committed against the public, whenever
the libel has a tendency to cause a breach of the peace. A remedy by
action is also accorded to the plaintiff to enable him to vindicate his
character and to obtain compensation for the injury which he has sustained.
If any person has been injured by a wrongful act which is
also a misdemeanour, he has a civil remedy, which he may
pursue or not as he thinks fit, and whether the State prose-
cutes the offender or not. But if the wrongful act is a felony
as well as a tort, the person against whom it was committed
must wait and let the State take action first, if it wishes. He
has a cause of action, but his remedy is suspended so long as
the wrong-doarhas not been prosecuted or a reasonable excuse
shown for his not having been prosecuted. If no such excuse
can be shown, any action in which damages are claimed for a
felonious act will be stayed until the defendant has been
prosecuted. 1 But the employer or the trustee in bankruptcy
of the person upon whom the felony was committed is under
no duty to prosecute, and can therefore pursue his civil
remedy as he pleases. 2
Whatever the person injured chooses to do—whether he
sues for damages or not—the State will take its own inde-
pendent course, and prosecute or not prosecute as the interests
of the community may demand. A plaintiff may always
abandon civil proceedings, if he wishes. 3 The King alone
can pardon a criminal, and such pardon will not affect civil
proceedings ; for the King cannot deprive a plaintiff of any
cause of action vested in him. On the other hand, the fact
that a plaintiff abandons or settles a civil action in no way
prevents the Crown from continuing the prosecution. Any
1 Smith and wife v. Selwyn, [1914] 3 K. B. 98 ; Carlisle v. On- (No. 2), [1918] 2
Ir. B. 442. That the defendant is out of jurisdiction would be a reasonable excuse :
per Kennedy, L. J., [1914] 3 K. B. at p. 103.
2 Ex parte Ball, In re Slieplierd (1879), 10 Ch. D. 667 ; Appleby y. Franklin (1885),
17 Q. B. D. 93.
3 Except in the case of a penal action, which is really a jwaai-criminal proceeding
18 Eliz. c. 5, post, pp. 209, 9ft2.
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