larciny in the county of D. it being found but of the value of twelvepence, and accordingly refolved by the opinion of all the justices, 31 Eliz. Moore, n. 739. pag. 550. for the statute of 25 H. 8. extended to ouft them of clergy, where clergy is demandable; but the jury finding the value to be but twelve-pence, or under, no clergy is demandable, becaufe petit larciny, but the party is to be whipt only.

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It hath been before observed, cap. 44. that upon the statute of 29 Eliz. cap. 15. tho A. and B. be both present and confenting to the breaking and entering of a house to rob, and A. only enters into the houfe, and B. ftands by, A. fhall be oufted of his clergy, but B. fhall have his clergy (h), because A. only entered the house, and the words of the ftatute extend only to him that actually enters the houfe; yet if A. and B. be prefent, and confenting to a robbery in or near the highway, or to a burglary, tho A. only actually commits the robbery, or actually breaks and enters the house, and B. perchance be watching at another place near, or be about a robbery hard by, which he effects not, yet they are both robbers or burglars, and both fhall be oufted of their clergy, as in Pudfey's cafe: and the reafon of the difference is, becaufe in this cafe both are robbers and burglars, but in the former cafe both steal not in the house, but only A. and that flatute binds up the exclufion of the clergy to ftealing in the house.

Anno 1672. at Newgate, Hyde and A. B. C. and D. conclude to ride out to rob, and acccordingly they rode out; but at Hounflow D. parted from the company, and rode away to Colbrook; Hyde, A. B. and C. rode towards Egham, and about three miles from Hounslow, Hyde A. and B. affaulted a man; but before he was robbed C. feeing another man coming at a distance, before the affault, rode up to him about a bow-thot or more from the reft, intending either to rob him, or to prevent his coming to affift, and in his absence Hyde, A. and B. robbed the first man of divers filk ftockings, and then rode back to C. and they all went to London, and there divided the spoil: it was ruled upon good advice, 1. That D. was not guilty of the robbery, tho he rode out with them upon the fame defign, because he left them at Hourflow, and fell not in with them, it may be he repented of the defign, but at least he pursued it not. 2. That C. tho he was not actually prefent at the robbery, nor, as I remember, at the affault,

(b) But now by the ftatute of 3 & 4 W. M. cap. 9. he would not have his clergy,

for by that ftatute clergy is taken away
from all aiders, abetters, or affilters.

but

1

but rode back to fecure his company, was guilty as well as Hyde, A. and B. and thereupon C. as well as Hyde, A. and B. had judgment of death, and was excluded of clergy, the indictment being for robbery on the highway, according to the refolution in Pudfey's cafe, for they were all robbers on the highway.

Foster 128, 129. 4 Blackf. Com. ch. 17. p. 243. Index to 1 Hawk. P. Q. tit: Robbery. Fofter. 128, 129. feems contra.

CHAP. XLVII.

Concerning reftitution of goods ftolen, and the confifcation of goods omitted in the indictment or appeal.

LTHO this title may feem to come more properly to be examined, when we come to confider of the proceedings and judgment in criminal causes, yet in as much as it properly relates to larciny and robbery of goods, it will not be amifs to take it up here as an appendix to the four former chapters touching larciny and robbery.

There are three means of restitution of goods for the party, from whom they were ftolen, viz. 1. By appeal of robbery or larciny. 2. By the statute of 21 H. 8. cap. 11. And 3. By courfe of common law.

I. Upon an appeal of robbery or larciny, if the party were convict thereupon, reftitution of the goods contained in the appeal was to be made to the appellant, for it is one of the ends of that suit.

And hence it is, that if in an appeal of felony or robbery the appellant omit any of the goods ftolen from him, they are forfeit, and confifcate to the king. 45 E. 3. Coron. 100.

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And fo it is, if he brings an appeal of robbery or larciny, and it appears upon the trial, that indeed the goods were the plaintiff's; but yet the appellee came to the goods not by felony, but by finding or bailment or the like without felony, the plaintiff forfeits thefe goods to the king for his false appeal. 3 E. 3. Coron. 367.

But if the defendant in the appeal be convicted, he shall not only have judgment of death, but the plaintiff fhall have a reftitution of his goods.

Hh 2

If A. fteals the goods of B. C. and D. feverally, and B. brings his appeal, and convicts the offender, yet before judgment C. and D. may pursue their appeals, and he shall be arraigned alfo upon their feveral appeals. 4 E. 4. 11. a.

So if judgment be given against A. upon the appeal of B. yet if the appeal of C. were begun before the attainder, A. shall be arraigned upon the appeal of C. because he is to have restitution of his goods thereby, yet by the book of 7 H. 4. 31. and 12 E. 2. Coron. 379. it feems, that the second trial at the fuit of C. is but in nature of an inqueft of office to entitle him to the reftitution of his goods, because as to the judgment of life he is already in law a dead person, and the book of 4 E. 4. 11. (a) speaks not in cafe of a judgment, but only of a conviction or finding guilty; quære, vide 44 E. 3. 44. yet vide Stamf. p. 66 and 107. it feems the attainder is no bar to C.

But certain it is, that if A be attaint at the fuit of B. and then and not before C. commences his appeal, A. thall not be arraigned thereupon; but if he be afterwards pardoned, then he shall be arraigned at the fuit of C. commenced after the attainder, 6 H. 4. 6. b. 10 H. 4. Coron 227. But if the attainder were at the king's fuit for that very felony, for which C. brought his appeal after the attainder, then it feems he fhall not be put to answer it. Stamf. P. C. p. 106.

Now touching reftitutions upon appeals, Stamf. Lib. III. cap. 10. fol. 165. hath given us a full account, I shall follow his method partly and fummarily. 1. Where the plaintiff fhall have reftitution. 2. When. 3. Of what things.

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1. As to the firft, where and in what cafes the party appellant fhall have reftitution.

1. It must be upon fresh fuit, and tho antiently the law was ftrict herein as to the time and manner of the purfuit and apprehending of the felon, yet the law is now more liberal.

If the felon be taken by any others, as by the fheriff, yet if the party robbed come within a year after, and gives notice of the felony, and enters his appeal, this is a fresh fuit, if he used his diligence fhortly after the felony to have taken him. 7 H. 4. 43. b.

2. The appellant muft proceed with his appeal to convict the felon; but yet in cafes of impoffibility of fuch conviction it is fufficient that he used his endeavour; as if he takes the felon, and imprisons him, and he dies within the year, and before the appeal commenced; so if («) That cafe was of a fecond appeal brought before the party had pleaded to the first.

the

the party abjure or break prison after he is taken, 12 E. 2. Coron. 380. fo as the appeal be commenced within the year and day, and that he made fresh fuit, 26 Affiz. 32. or if he challenge peremptorily above the number appointed by law, ftands mute of malice, or bath his clergy (b), 8 H. 4. 1. or be outlawed.

2. As to the fecond, when he thall have reftitution.

He fhall have reftitution after judgment against the appellee, and before execution made or prayed. 21 E. 4. 73. b.

He shall have reftitution after conviction of the principal, and before conviction of the acceffary, and after conviction of one of the principals before conviction of the other, or tho the other be acquitted upon his appeal. 21 E. 4. 16 a. 10 H. 4. Caron. 466.

But if A. steal severally the goods of B. and C. and he be convict upon the appeal of B. yet C. fhall not have restitution till he be convict at his fuit also, 4 E. 4. 11. fupra. altho the felon be convict at the fuit of the appellant, yet he is not to have reftitution till the fresh fuit be inquired, which is to be done by the fame jury that convicts the felon, if he plead to inqueft, but if he confefs the felony, or stand mute, it shall be inquired by inquest taken ex officio by the judge. 1 H. 4. 5. a. 2 R. 3. 12. 3 H. 7. 12. b.

3. Of what things he is to have restitution.

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If a felon waive the goods ftolen without any purfuit after him, thofe goods are not in law bona waiviata, nor forfeit to the king or lord of a franchife; but if he waive them upon a pursuit of him, then they are bona waiviata, and forfeit to the king or lord of the liberty; quod vide 5 Co. Rep. 109. a. Foxley's cafe.

And this forfeiture is not like a ftray, where tho the lord may feize, yet the party, who is the owner, may retake them within the year and day, but here the true owner cannot feize his own goods, tho upon fresh fuit within the year and day. 8 E. 3. 11. a. Avowry 151. & E. 3. Cor, 162.

But yet this is not an abfolute lofs of the owner's goods, but rather an expedient fettled by law to drive the owner to convict the felon by profecuting his appeal, and therefore if he make fresh fuit, and profecute his appeal, and the felon be thereupon convict and attaint, and the fresh fuit be inquired and found by verdict or inqueft of office, he shall have reftitution of the goods fo waived. 5 Co. Rep. 109. Foxley's cafe, 3 E. 3. Coron. 162.

. But more of reftitution under the next general, for it is regularly true, that of what things the owner fhall have reftitution upon the statute of 21 H. 8. he should have reftitution upon a conviction in an appeal at common law, and è converfo, fo that what is said upon the ftatute, is applicable to reftitution upon an appeal.

II. By the ftatute of 21 H. 8. cap. 11. it is enacted, “That if any "perfon do rob or take away the goods of any of the king's subjects "within this realm, and be indicted, arraigned, and found guilty "thereof, or otherwife attainted by reafon of the evidence of the party fo robbed, or owner of the faid money, goods or chattels, or any other by their procurement, that then the party fo robbed, or owner, fhall be reftored to his money, goods or chattels, and the juftices, before whom such person fhall be fo attainted, or found guilty by reafon of the evidence of the party fo robbed, or owner, or by any other by their procurement, have power "to reward writs of reftitution for the faid money or goods, or chat"tels in like manner, as tho any fuch felon or felons were attainted "at the fuit of the party in an appeal.

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This ftatute introduced a new law for reftitution: for before this ftatute there was no reftitution upon an indictment, but only upon an appeal. 22 E. 3. Coron. 460. Stamf. P. C. p. 167. a.

Tho the ftatute speak of the king's fubjects, it extends to aliens robbed; for tho they are not the king's natural-born fubjects, they are the king's fubjects, when in England, by local alligeance.

If the fervant be robbed of the master's money, and the master, or his fervant by his procurement give evidence and convict the felon, the mafter fhall have a writ of reftitution, if it appear upon the indictment and evidence it was the mafter's money, for the statute gives reftitution to the party robbed or owner. Stamf. P. C. p. 167.

If A. be robbed by B. and C. and B. only is convict of the robbery by the evidence of A. he shall have restitution, for so he should have had in case of an appeal.

If A. be robbed of an ox by B. who fells him to C. who keeps the money in his hands, and after kills the ox, and fells the flesh, or if the money be seized in the hands of the thief, A. may, if he pleases, have a writ of reftitution for the money. Noy's reports, Harris's cafe. (c).

(c) Noy 128.

So