Odger's English Common Law

TORTS WHICH ARE ALSO CRIMES. 423
action, but his remedy is suspended so long as the wrongdoer
has 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
The civil and criminal proceedings are quite independent
of each other. Whatever the person injured chooses to do
whether he sues for damages or not—the State will prosecute or
not prosecute, as the interests of the community may demand
It will make no difference to the civil action whether in
the criminal proceedings the defendant be acquitted or
convicted, or whether he be pardoned
;
2
— .
indeed, the result
of the criminal proceedings cannot be given in evidence in
the civil action. 3
So on the other hand the fact that the
plaintiff has abandoned his civil action or settled it out of
court will in no way prevent the State from continuing the
prosecution.
But no action of tort will lie unless the act which has
occasioned injury to the plaintiff was a wrongful act. There
must be an act of omission, which either violates the right
of the plaintiff in a manner or to an extent not authorised
by law, or the breach (causing damage to the plaintiff) of
a duty, which the defendant owes to him. If the defen-
dant's act be not unlawful, no action will lie, even though
such act was done maliciously and has caused damage to the
plaintiff. "An act which does not amount to a legal injury
cannot be actionable because it is done with a bad intent." 4
Thus, if A. maliciously publishes of B. defamatory words which ar
literally true, B. cannot recover any damages, although he may in some
cases take criminal proceedings for the publication of such words. If C
opens a grocer's shop next door to D.'s long-established grocery store, D.
has no cause of action, unless C. was under a contract not to set up in
opposition to him.
Again, it has been held that where E. made a reservoir on his own land
and collected the water which ran in underground channels through his
1 Smith and wife v. Selioyn, [1914] 3 K. B. 98 ; but see Carlisle v. Orr, [1918] -
I. R. 442.
2 There is an exception to this in the special case of assault, see ante, p. 324.
8 Castrique v. Imrie (1870), L. R. i H. L. 414.
4 Per Parke, B., in Stevenson v. Newnham, (1853), 13 C. B. at p. 297, cited with
approval by Lord Macnaghten in Quinn v. Leathern, [1901] A. C. at p. 508.