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Report No. 111

1.11. Felonious tort.-

It is also appropriate to mention that at common law, there was another rule which prevented recovery for a relonious tor.- a rule not confined to a tort causing death. The classic formulation of the rule is contained in the judgment of Phillimore L.R. in Smith v. Salwyn, (1914) 3 KB 98 (106) (CA) from which the following passage is taken:-

"It is a well-established rule of law that a plaintiff against whom a felony has been committed by the defendant cannot make that felony the foundation of a cause of action unless the defendant has been prosecuted or a reasonable excuse has been shown for his not having been prosecuted."

It may be mentioned that in England, the rule of the common law mentioned above has been abolished by statute.1 The rule has been abolished by express provision in many other countries also. Thus, the provision in Canada on the subject2 is in the following form3:-

"No civil remedy for any act or omission shall be suspended, or any proceedings taken in connection therewith stayed, by reason only of the fact that such act or omission constitutes a felony."

1. Pannam Felonious Tort Rule, (1965) 38 Aust LJ 164.

2. Section 1, Criminal Law Act, 1967 (Eng.).

3. Section 13, Canadian Criminal Code.

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