6 N.H. 454 | Superior Court of New Hampshire | 1833
delivered the opinion of the court.
It is urged, in thisjcase, that the party injured, can maintain no action commenced before the conviction of the offender, because the civil remedy was merged in the felony until the conviction, and did not emerge until after that event, so that in fact there was no cause of action when the suit was commenced.
But how the civil remedy can at this day be considered as merged in the felony, counsel has made no attempt to explain ; nor does it seem to us to admit of any explanation.
But at this day it is not pretended, that the merger lasts beyond the time of judgment in the criminal prosecution. What is it then ? Every man is presumed to be innocent until convicted. There is, then, before conviction nothing in which the civil remedy can be merged except a suspicion of felony ; and the moment this suspicion is found by a trial to be either well or ill founded, the merger ceases, 12 East, 409; 4 Greenleaf, 164; 3 ditto, 458; 4 N. H. Rep. 239; 2 Car. & Payne, 421; 15 Mass. Rep. 331; 2 D. & E. 750; Buller’s N. P. 32 and 78; 1 Levintz, 247.
To call a suspension of the civil remedy, till the criminal justice of the state is satisfied, a merger, is in our opinion very little, if any thing, short of an abuse of language. And in the case of Crosby v. Leng, 12 East, 409, the rule that denies private redress until the public justice is satisfied is placed entirely on grounds of public policy. Not a word is uttered by the court of any merger.
The question then, is, does that rule exist in this state ?
It has not been actually applied in any case that we can recollect. We are then at liberty to adopt or reject it according as we may find it adapted, or not adapted, to the situation and circumstances of this state.
At all events, there seems to us to be no sound reason why the party injured should not commence his action before the conviction or acquittal of the offender. It will be enough if he is compelled to wait for a trial in his cause, until the prosecution in behalf of the state is brought to a close. Whether even that is expedient, it will be time enough to settle, when the question arises.
To compel the injured party to wait until the prosecution for the offence is ended before he can commence an action must be, as is very well known, in most cases to deny all remedy.
We are, therefore, clearly of opinion, that it is no objection to this action that it was commenced before conviction.
Judgment on the verdict,