The order, therefore, will be in substance to stay all further proceedings in the action on the present statement of claim; [105] with leave to the plaintiffs to amend the statement of claim within twenty-one days; and if no amendment is made within that time, the action to be stayed until after criminal proceedings have been taken against the defendant.

SWINFEN EADY, L.J.-I am of the same opinion. It is well established that according to the law of England, where injuries are inflicted on an individual under circumstances which constitute a felony, that felony cannot be made the foundation of a civil action at the suit of the person injured against the person who inflicted the injuries until the latter has been prosecuted or a reasonable excuse shewn for his non-prosecution. In 1827 in Stoe v. Marsh, 6 B. & C. 551, at p. 564, 13 E. C. C. 249, 253, Lord Tenterden, delivering the judgment of the Court of King's Bench, stated the law thus: "There is, indeed, another rule of the law of England, viz., that a man shall not be allowed to make a felony the foundation of a civil action." That is the rule, and then he proceeds to state the ground of the rule. "The rule is founded on a principle of public policy. . . . Now public policy requires that offenders against the law shall be brought to justice, and for that reason a man is not permitted to abstain from prosecuting an offender, by receiving back stolen property, or any equivalent or composition for a felony, without suit, and, of course, cannot be allowed to maintain a suit for such a purpose." In White v. Spettigue, 13 M. & W. 603, at p. 608, the law was laid down in somewhat similar terms by Rolfe B., who said: "I think the true principle is, that where a criminal, and consequently an injurious act towards the public has been committed, which is also a civil injury to a party, that party shall not be permitted to seek redress for civil injury to the prejudice of public justice, and to waive the felony, and go for the conversion." The learned judge is there speaking of an injurious act which amounts to a felony. So too Cockburn C.J. in Wells v. Abrahams, L. R. 7 Q. B. 554, said (at p. 557): "No doubt it has been long established as the law of England that where an injury amounts to an infringement of the civil rights of an individual, and at the same time to a felonious wrong, the civil [106] remedy, that is, the right of redress by action, is suspended until the party inflicting the injury has been prosecuted." That being the established law, the question arises as to how it is to be enforced where an action is brought upon alleged facts which, if true, disclose a felony. Cockburn C.J. said in the same case: "But it may very well be

that, if an action were brought against a person who was either in the course of being prosecuted for felony, or was liable to be prosecuted for felony, the summary jurisdiction of this Court might be invoked to stay the proceedings which would involve an undue use, probably an abuse, of the process of this Court, in which case the Court is always willing to interfere to prevent such abuse." Blackburn J. (at p. 559) took the view that the Court could in certain circumstances stay the proceedings. Lush J. (at p. 563) said: "It is undoubtedly laid down in the text-books that it is the duty of the person who is the victim of a felonious act on the part of another to prosecute for the felony, and he cannot obtain redress by civil action until he has satisfied that requirement; but by what means that duty is to be enforced we are nowhere informed."

We have now to lay down the proper course of procedure in such a case. The proper course is, in my judgment, that indicated by Cockburn C.J. in the passage I have cited, that is to say, to stay the action, if the present statement of claim is persisted in, until criminal proceedings have been taken against the defendant, with leave to the plaintiffs to amend their statement of claim, and thus give them an opportunity of stating a cause of action without alleging a felony. I agree with the form of order proposed by Kennedy, L.J.

PHILLIMORE, L.J.-I am of the same opinion. 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 shewn for his not having been prosecuted. The prosecution need not necessarily be at the suit of the injured person. We are enabled now to pronounce a decision as to the mode of enforcing that rule, because hitherto no mode of procedure has been [107] definitely laid down. I agree with the order which has been suggested. I only desire to add a few words as to the statement of claim. There seems to me to be two distinct felonies alleged therein. There is a charge of rape at the end of paragraph 3, and there is charge of felony in paragraphs 2 and 3 combined. It might be uncertain whether paragraph 2 alleged the administration of a drug to the female plaintiff with a view of making her unable to resist so that the defendant might have carnal knowledge of her. It is, however, frankly admitted that paragraphs 2 and 3 are intended to be read together and to have that meaning. It comes therefore within s. 22 of the Offenses against the Person Act, 1861, and it is none the less a felony within that section because it may

also be a misdemeanour within s. 3, sub-s. 3, of the Criminal Law Amendment Act, 1885. Various distinctions have been attempted to be drawn between the two sections, but it matters not, because there is a clear charge of felony under s. 22 of the Act of 1861 as the foundation of the action. The statement

of claim therefore alleges two different felonies on the same facts. I agree that the proper order is that stated by my Lord. Appeal allowed.

NOTE.

Merger or Suspension of Civil Action Predicated on Commission of Felony.

The early English rule that all civil remedies of a person injured by a felony were merged in the criminal offense, being based on the ground that the goods, of a convicted felon were forfeited to the crown, later gave way to a doctrine based on public policy that all civil remedies are suspended until the offender has been prosecuted to conviction. 1 R. C. L. tit. Actions, p. 327. The later English cases show a tendency to disregard the rule, and in Midland Ins. Co. v. Smith, 6 Q. B. D. (Eng.) 561, wherein the authorities were reviewed at length, the court said: "The history of the question shows that it has at different times and by different authorities been resolved in three distinct ways. First, it has been considered that the private wrong and injury has been entirely merged and drowned in the public wrong, and therefore no cause of action ever arose or could arise. Secondly, it was thought that, although there was no actual merger, it was a condition precedent to the accruing of the cause of action that the public right should have been vindicated by the prosecution of the felon. Thirdly, it has been said that the true principle of the common law is that there is neither a merger of the civil right nor is it a strict condition precedent to such right that there shall have been a prosecution of the felon, but that there is a duty imposed upon the injured person, not to resort to the prosecution of his private suit to the neglect and exclusion of the vindication of the public law. In my opinion this last view is the correct one." The decision of the Court of Appeal in the reported case establishes, however, that in England, the court has the right, if not the imperative duty, to stay the proceedings in a civil action based on a felony where no criminal prosecution has been begun.

In the United States the English doctrine found little favor in the early cases and except in one jurisdiction (see Brady v. Messer, 27 R. I. 373) civil remedies in favor of a person injured by a felony are neither merged

in the offense against public law nor suspended until after the termination of a criminal prosecution of the offender. 1 R. C. L. tit. Actions, p. 328. The leading American case on the subject is Boston, etc. R. Corp. v. Dana, 1 Gray (Mass.) 83, wherein the court stated the argument against the English doctrine as follows: "Without regard, however, to the causes which originated the doctrine, it has been urged with great force and by high authority, that the rule now rests on public policy; King v. Oxford County, 12 East 413, 414; that the interests of society require, in order to secure the effectual prose cutions of offenders by persons injured, that they should not be permitted to redress their private wrongs, until public justice has been first satisfied by the conviction of felons; that in this way a strong incentive is furnished to the individual to discharge a public duty, by bringing his private interest in aid of its performance, which would be wholly lost, if he were allowed to pursue his remedy before the prosecution and termination of a criminal proceeding. This argument is doubtless entitled to great weight in England, where the mode of prosecuting criminal offenses is very different from that adopted with us. It is there the especial duty of every one, against whose person or property a crime has been committed, to trace out the offender, and prosecute him to conviction. In the discharge of this duty, he is often compelled to employ counsel; procure an indictment to be drawn and laid before the grand jury, with the evidence in its support; and if a bill is found, to see that the case on the part of the prosecution is properly conducted before the jury of trials. All this is to be done by the prosecutor at his own cost, unless the court, after the trial, shall deem reimbursement reasonable. 1 Chit. Crim. Law, 9, 825. The whole system of the administration of criminal justice in England is thus made to depend very much upon the vigilance and efforts of private individuals. There is no public officer, appointed by law in each county, as in this commonwealth, to act in behalf of the government in such cases, and take charge of the prosecution, trial and conviction of offenders against the laws. It is quite obvious that, to render such a system efficacious, it is essential to use means to secure the aid and co-operation of those injured by the commission of crimes, which are not requisite with us. It is to this cause, that the rule in question, as well as many other legal enactments, designed to enforce upon individuals the duty of prosecuting offenses, owes its existence in England. But it is hardly possible, under our laws, that any grave offense of the class designated as felonies can escape detection and punishment. The officers of the law, whose province it is to prosecute criminals, require

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no assistance from persons injured, other than that which a sense of duty, unaided by private interest, would naturally prompt. On the other hand, in the absence of any reasons, founded on public policy, requiring the recognition of the rule, the expediency of its adoption may well be doubted. If a party is compelled to await the determination of a criminal prosecution before he is permitted to seek his private redress, he certainly has a strong motive to stifle the prosecution and compound with the felon. Nor can it contribute to the purity of the administration of justice, or tend to promote private morality, to suffer a party to set up and maintain in a court of law a defense founded solely upon his own criminal act. The right of every citizen, under our constitution, to obtain justice promptly and without delay, requires that no one should be delayed in obtaining a remedy for a private injury, except in a case of the plainest public necessity. There being no such necessity calling for the adoption of the rule under consideration, we are of opinion that it ought not to be engrafted into our jurisprudence."

The foregoing was quoted with approval in Leeman v. Public Service R. Co. 77 N. J. L. 420, 72 Atl. 8. In Downs v. Baltimore, 111 Md. 674, 19 Ann. Cas. 644, 76 'Atl. 861, 41 L.R.A. (N.S.) 255, it was said: "Coming, however, to the specific contention of the appellant in this case it has been emphatically denied by so high authority as Judge Cooley, who says in his work on Torts, 1st ed. page 87: In this country the common law doctrine of the suspension of civil remedy in case of felony has not been recognized. The reason usually assigned is, that in this country the duty of prosecuting for public offenses is devolved upon a public officer chosen for the purpose, instead of being left as in England to the voluntary action of the party injured by crime. The civil and the criminal prosecution may therefore go on pari passu, or if the latter is not commenced at all, the failure to seek public justice is no bar to the private remedy.' This text of Judge Cooley's is sustained by numerous decisions among which is the case of Boston, etc. R. Corp. v. Dana, 1 Gray (Mass.) 83, in which the court concisely states: "The doctrine of the English law, that for goods feloniously taken, no action lies against the felon before the institution of criminal proceedings against him, is not in force in this commonwealth.””

Pensions Effect of Admission to Soldiers' Home.

Pub. Acts 1885, No. 152, establishing the Michigan Soldiers' Home, by section 2, vested the general government in a board of managers, by section 8, required the board to prepare a system of government, by section 11, declared that all honorably discharged and disabled soldiers and sailors otherwise dependent on charity should be admitted, subject to the regulations of the managers. Pub. Acts 1905, No. 313, provided that money accumulated in the post fund of the home might be used to benefit the home and its inmates, and Pub. Acts 1911, No. 102, that pensions of residents might be taken for disciplinary purposes to be held in trust for them. Held, that one whose pension was adequate for his support was not entitled to admission, and that a regulation imposed as a condition of admission that residents transfer their pensions in excess of $12 per month, to be permanently retained and ultimately turned over to a general state fund, was beyond the power of the board, and that the amounts so retained were held in trust, to be accounted for according to Act No. 102. [See note at end of this case.]

[349] STEERE, J.-The ultimate question presented by this record is whether the board of managers of the Michigan soldiers' home at Grand Rapids ever had the right to take and retain permanently all or any part of the pensions of inmates of that institution.

Defendants have appealed from a decree of the circuit court of Kent' county, in chancery, awarding $8,373.14 to 126 of the 206 complainants, in sums ranging from $4.95 to a maximum of $541.86 (principal and interest), being pension money received by said complainants from the United States government while residents of said soldiers' home, and retained by defendants under rules and general orders adopted and promulgated by said board of managers in cases where the individual pensions exceeded $12 per month.

The original bill of complaint herein was filed September 4, 1909, by Orange S. Mason, since deceased, in his own behalf and that of others, to restrain enforcement of a general order promulgated by the defendant board of managers, requiring all inmates of said home to surrender all pension money received by them in excess of $12, or in exceptional cases $15, per month to the authorities of the institution, to be permanently retained and ultimately turned into the general State fund. Subsequently all parties who are now complainants were made parties to said bill of complaint by an order of the court.

[350] Upon the filing of such bill a preliminary injunction was issued restraining the defendants from enforcing the provisions of said order. Defendants demurred to said bill, later amending said demurrer, alleging, among other reasons, that the suit instituted by complainants was in fact a suit against the State of Michigan, and therefore could not be maintained without the consent of the State; that said board of managers was an agency of the State, and defendants possessed only limited powers especially provided by law, not including the right to sue and be sued in the courts of the State of Michigan. Complainants' bill was later amended, and a plea was filed by defendants to said amended bill, followed by a replication of complainants. Thereafter a stipulation between the parties provided that the suit should be brought on for hearing upon the bill of complaint and plea on a date fixed, at which time, by permission of the court, complainants' replication was withdrawn, and an amended bill filed praying for an accounting by defendants for the moneys collected from complainants as Ann. Cas. 1916C.-54.

alleged, and asking for an injunction restraining defendants from discharging any of complainants from said home until the further order of the court, from collecting or appropriating any money due complainants as pensioners of the civil war, from compelling them to sign receipts or transfers for any money due them as pensioners of the United States government, and from transferring or setting over any moneys received by defendants as aforesaid to the general fund of the State of Michigan. A plea was then filed by defendants to said amended bill fairly putting in issue all material questions raised by said amended bill and involved in this controversy, with a general denial of complainants' right to the relief asked. A later replication filed by complainants finally concluded the protracted pleadings, and the [351] suit was brought to a hearing on March 4, 1913, upon pleadings and proofs taken in open court.

The trial court rendered an opinion that said board of managers of the Michigan soldiers' home had no authority, under the law creating such institution, to make rules by which any part of the soldiers' pensions received from the United States government could be permanently taken from the inmates of the home and appropriated by the board; the gist of said opinion being as follows:

"If soldiers, sailors, and marines come within that class which entitles them to the benefits of the home, they are entitled to the enjoyment of such benefits, without payment therefor. If not entitled to the benefits of the home, they should not be admitted. The State gave the board no authority to contract with those not eligible for admission to the home. It did not intend to give the board of managers any authority to deal with any except those entitled to the benefits of the home. It was not intended that the institution should be supported in an way by contributions from the pensioners."

The Michigan soldiers' home was established by Act No. 152, Pub. Acts 1885 (2 How Stat [2d ed.] § 31716 et seq.), entitled:

"An act to authorize the establishment of a home for disabled soldiers, sailors, and marines in the State of Michigan."

By section 2 of said act the general supervision and government of said soldiers' home is vested in a board of managers consisting of six members appointed by the governor by and with the advice and consent of the senate. Section 8 provides:

"It shall be the duty of the board of managers to meet once in every three months. on their own adjournment, and oftener if they shall deem it advisable, at which meeting they shall prepare and carefully digest and mature a system of government for said [352] home, embracing all such rules, regulations, and general laws as they may deem necessary for

preserving order, for enforcing discipline, for preserving the health of such disabled soldiers, sailors, or marines as may be received at this home."

Other parts of the act, of minor importance here, provide for the selection by said board of a treasurer and clerk from their own body and a commandant for said home, with such subordinate officers and employees as may be necessary. Provision is also made by subsequent legislation for establishing upon the same premises and under the same management a home for the wives and mothers of such disabled soldiers.

Section 11 of said act provides in part as follows:

"All honorably discharged soldiers, sailors and marines, who have served in the army or navy of the United States in the late War of the Rebellion [or in the Mexican War], and who are disabled by disease, wounds, or otherwise, and who have no adequate means of support, and by reason of such disability are incapable of earning their living, and who would be otherwise dependent upon public or private charity, shall be entitled to be admitted to said home, subject to the rules and regulations that shall be adopted by the board of managers to govern the admission of applicants to said home."

This section also requires a previous residence of one year in the State, unless the applicant served in a Michigan regiment or was accredited to the State of Michigan, and subsequent amendments provide for the admission to said home of soldiers, sailors, and marines who have served in the SpanishAmerican or Philippine wars upon the same conditions.

This court, in construing the law creating the soldiers' home, has defined it as an eleemosynary institution; the purpose of its existence being to dispense to a favored but dependent class a well-bestowed and [353] deserving charity. The language of the act admits of no other construction. Its object was to furnish a home, which would be a more congenial and fitting refuge than the ordinary charitable institution, to that class of honorably discharged veterans who, disabled by disease, wounds, or otherwise from earning their living, and having no adequate means of support, would otherwise become objects of common charity. Wolcott v. Holcomb, 97 Mich. 361, 56 N. W. 837, 23 L.R.A. 215.

In its general scope the law does not contemplate, nor by its language does it permit, that the board of managers shall admit as inmates of the home any self-supporting, honor ably discharged soldiers, however worthy, and allow them, in case they so desire, to pay for their care and maintenance in whole or in part, as is the law in some other States which

extend the privileges of the home to veterans whose financial condition would bar them from regular admission. A soldier's pension is not a charity, but a reward won, or compensation earned, by services rendered to his country, to which he is entitled, wholly regardless of his financial circumstances, and which is paid alike to the rich and poor. Comparatively few of these entitled to, and who receive, soldiers' pensions are entitled to admission to the soldiers' home. If 8 soldier's pension is adequate to support him, or, added to his other resources, renders him self-supporting, he is not entitled to admission to the home as an inmate. If, though receiving a pension, his means of support are not adequate, and he is incapable of earning a living, and his status is such that, unless admitted to the home, he would have to be supported by charity in whole or in part, he is entitled to admission. That is the test. The statute creates no grades or degrees in that particular, and imposes no conditions beyond that. There is no suggestion in the law that those of [354] the class entitled to admission shall contribute from their pensions or other scant resources which they may have towards their maintenance. The legislature might have so provided; but it did not. In some of our sister States such conditions were imposed, and the Federal law creating national soldiers' homes first expressly provided that applicants must surrender their pensions as a condition of admission; but subsequent legislation to the contrary has removed those conditions for admission to the national soldiers' homes, and the same course has been followed by most of the States. A report of inspection of State soldiers' and sailors' homes for the year 1910, made by the inspector general of the national home for discharged soldiers, shows that of 54 such institutions scattered throughout the United States only 5 exact any part of the inmate's pension for his maintenance or the support of the home.

It is contended in behalf of defendants that under the provisions of sections 8 and 11, above quoted, power was delegated to the board by the legislature to include in the rules and regulations which it was authorized to adopt for a system of government of the home the condition of admission requiring contributions from pensions now in controversy, and that such authorized rules and regulations when adopted and promulgated have all the force and effect of a statute.

The question of what power was delegated by statute to the board came before this court in Loser v. Soldiers' Home, 92 Mich. 633, 52 N. W. 956. In that case a mandamus was asked to compel respondents to vacate a rule, numbered 14, and a general order based upon it, requiring every pensioner admitted to the home who received a pension in excess of $5