The fact that torts and criminal law were originally one branch of the law has been already stated and explained.6 Even today, after the differentiation of the two branches has been completely worked out, the same act often constitutes both a crime and a tort. Briefly stated the difference between a tort and a crime is that the former is a wrong to an individual and the latter a wrong to the public. The former is redressed by compelling the wrongdoer to recompense the injured party for the damages he has suffered; the latter is redressed by the punishment of the criminal.7 Under the early Common law, where the same act amounted both to a tort and a felony, the tort was held to be merged in the felony, and no civil action was allowed to the injured party.8 This extreme rule, however, was soon abandoned, or rather modified, it still being held that the civil action was suspended during the criminal prosecution, and that the plaintiff must allege in his pleadings his diligence in the criminal prosecution, and prove such diligence at the trial.9 If the plaintiff alleged, an unprosecuted felony as his cause of action, the proceedings in the case were stayed until the offender could be prosecuted.10 A defendant, however, never could set up his own felony as a defense.11 A tort was never held to be merged in a misdemeanor.

6 See Vol. I, pp. 16-18.

7 "Certain acts or omissions are made public offences by the common law or by statute, either because their inherent qualities and necessary ten-encies make them prejudicial to organized society, or because it is believed that the evils likely to flow from them will be so serious that the general good will be subserved by forbidding them and penalities are attached to them, which are imposed on public grounds. These, according to their grade, are crimes or misdemeanors, or they are simply things prohibited under penalty. But where the same wrongful acts cause damage to private individuals, they come directly within the definition of torts, and are such." Cooley on Torts (2nd Ed.), 81.

8 Higgins vs. Butcher, Yelv., 89.

9 Crosby vs. Leng, 12 East, 409;

Cox vs. Paxton, 17 Ves. Gr., 329; Vincent vs. Sprague, 3 U. C. Q. B., 283.

10 Roope vs. D'Avigdor, 10 Q. B. D., 412.

In a few of the States of this country,12 the English rule on this point was adopted; but in the great majority of States it never was.13 In a number of the states, including some of those which at first adopted this principle, the English rule has abolished by express statute.14

Where the same act is both a tort and a crime the party injured has no right to drop the criminal prosecution, or to agree not to testify against the accused, upon satisfaction of his private injury. Such an act would constitute a compounding of a felony, and would be in itself a crime.