McBlain v. Edgar
| Decision Date | 04 March 1901 |
| Citation | 65 N.J.L. 634,48 A. 600 |
| Parties | McBLAIN v. EDGAR. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to circuit court, Cumberland county.
Suit by Mary Ann McBlain against Robert Edgar. Judgment for plaintiff, and defendant brings error. Reversed.
Frank C. Bray and Louis H. Miller, for plaintiff in error.
William A. Logue, for defendant in error.
The errors assigned are quite numerous, but only two of them need be here considered. To the plaintiff's declaration the defendant, by his second plea, set up that for the offense which the plaintiff claimed damages against him (which was, in the criminal law, rape) he had been indicted by a grand jury of the county of Cumberland, and that this indictment was still pending, and wholly undetermined against him, and that, therefore, plaintiff ought not to have her action, etc. The affidavit of the defendant to sustain this plea proceeds, after stating that the indictment was found, as follows: "And deponent says that he was tried on said indictment at the May term of the Cumberland county quarter sessions, to which court the said indictment had been handed down to be tried, and that at such trial the jury disagreed; that this deponent has never since been subjected to a new trial or retrial on said indictment; and deponent is informed that the said indictment was voluntarily quashed or dismissed by the entry of a nolle prosequi on behalf of the state on or about the loth day of April last, but that the same was never dismissed or quashed by the entry of said nolle prosequi until several weeks after the commencement of this action; and that at the time of the commencement of this action the said indictment remained wholly untried, undetermined, and undisposed of, and yet pended against deponent, as will more fully appear by the record of said indictment and the proceedings had thereon, of record in the Cumberland county, N. J., clerk's office, which said record and proceedings are made a part of this affidavit." Upon notice, and after hearing, by an order dated July 19, 1890, the court struck out the second plea, on which order after judgment error is here assigned. The contention is that the plea alleges that the defendant is guilty of an offense Which at common law was a felony, and that the indictment is for such offense, and that no civil suit can be maintained until the plaintiff has prosecuted the criminal offense, and there is either a conviction or an acquittal.
The common-law rule was not quite so narrow as the plaintiff in error contends, yet it did require either a conviction or acquittal of the defendant, or some other termination of the proceeding on the criminal charge by some judicial act for which the plaintiff was not responsible by fault or collusion. Crosby v. Leng, 12 East, 409. The common-law rule was founded upon a reason which does not exist with us, and therefore should not be followed. In England— formerly, at least—it was the duty of every one against whoso person or property a crime had been committed to prosecute the guilty one to conviction. He was, in the discharge of this duty, often compelled to employ counsel, procure the indictment to be drawn and laid before the grand jury, with the evidence in its support, and, if found, to see that it was properly prosecuted before the jury of trials. 1 Chit. Cr. Law, 9, 825; Foster v. Tucker, 14 Am. Dec. p. 245, note. Such a practice is not observed here. We have public prosecutors in every county. There is no reason for its adoption. As the supreme court of Massachusetts say in a very early case: "In the absence of any reason founded on public policy requiring the recognition of the rule, the expediency of its adoption may be well doubted." Railroad Co. v. Dana, 1 Gray, 83. The opinion of Judge Bigelow in, the case just cited goes so exhaustively into this whole question, both as to the rule at common law and the reasons therefor, and for its nonadoption under our practice, and our constitutional guaranty to the citizen, both as to criminal and civil procedure, that we feel constrained to adopt it as a sound statement of the principles applicable to like conditions in this state. That case was cited with approval in Atwood v. Fisk, 101 Mass. 363, 305. The rule at common law has also...
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Miller v. Henderson
...N.J.L. 540, 541 57 A.2d 8 (E. & A. 1948); Newhouse v. Phillips, 110 N.J.L. 421, 424, 166 A. 482 (E. & A. 1933); McBlain v. Edgar, 65 N.J.L. 634, 637, 48 A. 600 (E. & A. 1901); cf. McCormick, op.cit., supra, § 39, at 78, and Note, Cornell L.Q. 511 (1945) for criticism of rule; Id., § 37, at ......
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Corbett v. Van Kirk, A--710
...in the case of non-party witnesses, solely to contradict or discredit; it is affirmative proof of probative value. McBlain v. Edgar, 65 N.J.L. 634, 48 A. 600 (E. & A.1901); Newhouse v. Phillips, 110 N.J.L. 421, 424, 166 A. 482 (E. & A.1933); Ambrose v. Indemnity Insurance Co. of North Ameri......
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Cherr v. Rubenstein
...other than parties to the action, be shown to have been made by the one party in the presence of the other. McBlain v. Edgar, 65 N.J.L. 634, 48 A. 600 (E. & A.1901); Newhouse v. Phillips, 110 N.J.L. 421, 166 A. 482 (E. & We are here obliged to accept the court's statement that the objection......
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Shim v. Kikkoman Intern. Corp., Civ. No. 79-1071.
...or acquittal. A seminal case which considered that rule and decided that it did not apply in the United States was McBlain v. Edgar, 65 N.J.L. 634, 48 A. 600 (E & A, 1901). In that unanimous decision, Mr. Justice Fort observed that the rationale for the English practice did not exist here. ......