required in open court; or, lastly, if the affidavit be insufficient to procure these consequences, the Estreat will be confirmed.

After the session has expired, the clerk of the peace, or town clerk, (as the case is,) makes out a proper Estreat, or list of the forfeitures incurred, and the fines inflicted while the session continued; and he is directed by statute* to deliver a perfect Estreat, or schedule of all fines, issues, amerciaments, and other forfeitures whatever, to the sheriff before Michaelmas, and a duplicate into the court of Exchequer by the second Monday after the morrow of All Souls, under not only a heavy pecuniary penalty, but a liability of being discharged from office, and further disabilities. With the ulterior proceedings, after the sum forfeited has become a debt due to the King, the sessions have no concern, nor can we have any here. The court of Exchequer issues process to compel payment, through the medium of the sheriff, and, therefore, to that court alone belongs the cognizance of all applications.

The last subject to be touched upon is appertaining, Restitution of though somewhat remotely, to the conclusion of the justices' stolen goods. authority in sessions,-that of Restitution of goods stolen to the right owner, after the conviction of the offenders.

The person from whom goods were stolen had formerly three methods whereby to procure Restitution: 1st. by appeal of robbery; 2dly. by a statute 21 Hen. 8. c. 11. which introduced a new law, in the words following:

"If any felon do rob, or take away any money, goods, or chattels from the King's subjects, from their persons or otherwise, within this realm, and thereof be indicted and arraigned, or found guilty, or otherwise attainted, by reason of evidence given by the party robbed, or owner of the money or goods, or by any other by their procurement: then the party robbed, or owner of the money or goods, shall be restored to such his money or goods; and as well the justices of gaol delivery as other justices before whom the felon shall be found guilty or otherwise attainted, may

22 & 23 Car. 2. c. 22.

+ 4 & 5 Wm. & Mar. c. 24, and 3 Geo, 1. c. 15.

award a writ of Restitution, in like manner as if the felon
were attainted on appeal."

3dly. By common law.* But there does not appear to
have been any writ of Restitution awarded for above two
hundred years past; for it is now usual for the court, upon
the conviction of a felon, to order (without any writ) im-
mediate Restitution of such goods as are brought into
court, to be made to the several prosecutors. † Indeed,
without any writ of Restitution, or even order, the party
may retake his goods wherever he happens to find them, so
as it be not in a riotous manner, or attended with a breach
of the peace, because he hath pursued the law upon the
felon, and may have his writ of Restitution upon demand.

Besides, the owner may have this only opportunity of
doing himself justice; for his goods might be afterwards
conveyed away or destroyed, if he had no speedier remedy
than the ordinary process of the law: if, therefore, he can
so contrive it as to gain possession of property again,
without force or terror, the law favours, and will justify his
proceeding. ‡

Likewise, if the felon be convicted and pardoned, or be
allowed his clergy, the party may bring his action of trover
for the goods, and recover a satisfaction in damages; but
that is a consideration beside our purpose here.

If it shall appear to the court, that the party hath been
guilty of a gross neglect in prosecuting, it seems that, in
such case, he shall not be entitled to restitution by any
authority of the court. §

And where goods have been obtained from another by
mere fraud, the court have no power to award Restitution
on conviction of the offender, as in cases of felony.[]

1 Hale, 538.

3 Black. Com. 4.

+ Loffts. R. 88.-4 Black. Com. 363.
§ 2 Hawk. c. 23. 2 E. P. C. c. 18.

1

INDEX

Alias, 166

publican suffering tippling, &c. 731

effect of conviction for, on the license for selling, 732, note
gaming in, explanation of the statute respecting, 734, note

selling ale without a license, immediate and remote effects of
considered, 736, note

proceedings in arguing appeal against poor rate, 654

against order of justices on pawnbrokers' act, 656

against ditto respecting the diverting of a highway, 658, note

against ditto respecting seizure of goods, 668

excluded or omitted by statute, 695

excluded by inference, 707

Appeals, notices of, modern determinations respecting, 708
course of proceeding in the hearing of before justices, 709
ditto before commissioners of excise, 710

dismissed for informality, 713

adjournment of, ibid.

precedents of, 715

Apprentices, 3

cruel treatment of, 241

complaints of to session, 488

discharge of by sessions, ibid.
ditto by other means, 555

Apprenticeship, settlement by, 545

particulars respecting the contract, 546
stamps requisite for, 548

residence necessary to obtain a settlement, 551
assignment of, 554

Arraignment, 162

Array, challenge to, 179

Arrest, persons protected from in civil actions coming to attend sessions, 80
escaping from, 314, note

Articles of the peace, 500

for what time may be required, 501
exhibited before sessions, 503

when to be granted, or refused, 505

when respited and how discharged, 507

Asportation, 131

Assaults, 124

precedents of indictments for, 231

on persons in the execution of public duties, 240

with intents to commit other offences, 242

nice points of discrimination to be attended to respecting some
statutable ones, 243, notes

and cutting garments, 244

Attorneys, 83

privileges and disabilities, 84

demands upon their clients, 87

not to be called on for evidence, 204

guilty of certain offences, how to be dealt with, 249, note

Auctioneer, selling without a license, 737

observations on the statutes respecting, 738, note

Averments in indictments generally, 175

in a particular case, 337

Barristers, their privileges, 83

Bastards, orders by petty session for maintenance of, 3

indictment for disobedience of such orders, 250

order by quarter session for maintenance of, 489

ulterior proceedings respecting, 491

observations on 49 Geo. 3. c. 68, respecting, 494, note
appeal, by 49 Geo. 3. 496

deserted by their parents, 499

form of order respecting, 718

Bastardy, 3

evidence of by the mothers, 497

proceedings in appeals against orders of, 498

grounds for resisting orders of, 496

mother's testimony, how far admissible evidence of, 497

order of proceeding in appeals respecting, 498

Caption of an indictment, 163

Carriers, exceeding rate of wages, 4

Case, special, 832

Certificate, of conformity, 35

of gaoler to Mich. quarter sessions, 60

of justices respecting the repair of roads, 106
of paupers, 601

their operation upon settlements, 605

of justices respecting the diverting highway, 662

Certiorari, 835

its effect, 836

how obtained, 837

Chairman of session, 95

Commission of the peace, 25

conviction for, 798

Commitments, distinctions between those for trial, and those in execution,

516, note

Compounding felony, 275

other suits, 278

statute respecting, does not extend to informations before
justices, 276, note

Compromising assaults, 160