Hutchinson v. Merchants' & Mechanics' Bank of Wheeling

| Pa. | Nov 25, 1861

The opinion of the court was delivered,

by Lowrie, C. J.

Trover, being the proper remedy for the wrongful conversion or appropriation of the property of another, undoubtedly includes appropriations by theft, as well as by fraud and trespass, unless there is some special rule of public policy that excludes them. There is none such ; but it has'often been held, for the sake of public justice, that the private action of trover is suspended until the public prosecution for the offence has been duly conducted and ended: Lofft 88, 601; 15 Q. B. 566; 2 Ad. & E. 495 ; 2 Car. & P. 41; 9 B. & C. 208. There are some special exceptions to this, -which we need not now explain : 10 Bing. 243 ; 3 Id. 444. It is thus that the law is generally understood in this state, when the thief can be ascertained and found; and on this rule the case was rightly tried. The rule of course suspended the Statute of Limitations until the claims of the public were satisfied by the termination of the criminal prosecution; and this suit was within six years after that, and therefore in time.

The private wrong was not merged in the public one, nor is the public prosecution intended to supersede the private action. Their purposes are entirely different. The person wronged is not chargeable with the conduct of the prosecution, and therefore not affected by an acquittal.' Even a conviction and sentence do not discharge his right of action, for a pardon may make it ineffectual for restitution. We do not discover any irregularities or inaccuracies in the trial to the injury of the defendant below.

Judgment affirmed.