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stolen upon any other prosecution whatsoever, but that of appeal.* 2 Hawk. c. 23. s. 55.

But to remedy this inconvenience, it is enacted by 21 Hen. 8. c. 11, That 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 award a writ of restitution, in like manner as if the felon were attainted on appeal.

And the construction of this act having been in a great measure conformable to the law of appeals, it has therefore in practice wholly superseded the use of appeals of larceny. 4 Black. Com. 363.

And the party's title to such restitution shall be preferred to Party's title to any subsequent title gained in the goods; therefore, such res- prevail against titution shall not be barred by any seizure of such goods, as all other perbeing waifs or estrays, or the goods of felons, nor even by a sale of them,bona fide,made in market overt. 2 Hawk. c. 23.s. 54.

And, though this may seem somewhat hard upon the buyer, yet the rule of law is, that spoliatus debet, ante omnia, restituti; especially when he has used all the diligence in his power to convict the felon. And since the case is reduced to this hard necessity, that either the owner or the buyer must suffer; the law prefers the right of the owner, who has done a meritorious act by pursuing a felon to condign punishment, to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction. 4 Black. Com. 363.

But there does not appear to have been any writ of restitution awarded for above 200 years past. Loft's Rep. 88.

sons.

For it is now usual for the court, upon the conviction of a The court will felon, to order (without any writ) immediate restitution of such order restitu goods as are brought into court, to be made to the several prosecutors. 4 Black. Com. 363. Cas. Temp. Ld. Hard. 349.

tion,

biy,

Also, without such writ of restitution, the party may retake or the party his goods wherever he happens to find them, so as it be not in a may retake his riotous manner, or attended with a breach of the peace, because he goods peaceahath pursued the law upon the felon, and may have his writ of restitution if he please. 4 Black. Com. 363. 1 Hale's Hist. 546. 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 ordi

* Which, as has been before chserved in Vol. I. is the party's private action, prosecuting also for the crown, in respect of the offence against the public. 1 Hawk. č. 23. s. 1.

or bring trover for them.

and recover even things which have

been purchas

ed with the money stolen, &c.

No action be

nary process of the law: if therefore, he can so contrive it, as to gain possession of his property again, without force or terror, the law favours and will justify his proceeding. 3 Black. Com. 4. 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. 1 Hale's Hist. 546. 4 Black. Com. 363. Loft's Rep. 88.

And the party is even entitled to recover things, which in strictness cannot be said to have been stolen from him, as where the felon sells the thing stolen, or exchanges it for some other thing, and the money taken on the sale, or the thing given in exchange, are seized to the king's use; in such case they shall be delivered to the party, on the conviction of the felon, though they were never in his possession before; for it arises from the stealing, and is within the equity, though not the very words of the statute. 2 Hawk. c. 23. s. 57. Noy, 128. Cro. Eliz. 661, Loft's Rep. 88.

But no such avion lies before prosecution, for so felonies fore prosecu would be made up and healed. 1 Hale's Hist. 546.

tion.

And such action is only maintainable against the person who had possession of the goods at the time of the conviction of the thief, or afterwards, and not against any person who may in the inter mediate time, between the felony and conviction, have had possession thereof by sale in market overt, and afterwards parted with the property, for the property being altered by such sale in market overt the party cannot demand his goods merely because they have been stolen, but must prosecute the felon to conviction; and then, and not before, his property revests: he therefore cannot maintain trover against a person who may have had them in his possession and parted with them before that time; for he must in that action prove that the goods were his property, and that while they were so, they came into the defendant's posses sion, who converted them to his own use, which a person who has parted with them before his property revested cannot be said to have done. 2 Term Rep. 750.

And if goods be obtained from another by fraud, although the party prosecute the offender to conviction, yet he is not in. titled to restitution from a third person, who has given a valua ble consideration for them; and if he does get possession there. of, the person who gave such valuable consideration, may re cover them back, for this is distinguishable from the case of fe lony; there the owner, in case he prosecutes the offender to conviction, is entitled, by a positive statute, to restitution : but that does not extend to the case where goods are obtained by fraud. 5 Term Rep. 175.

However, in the particular case of horse-stealing, it is enact ed by 31 Eliz. c. 12*, that where horses are stolen, the owner,

* See the general Title Horses.

potwithstanding they be sold in open market, if he claims them again within six months, may have them again; and even after that time, if he pays the buyer as much as they cost him, he shall have them again, notwithstanding such sale; and this without prosecution.

necessary to

By virtue of the stat. 21 Hen. 8, the party may upon an in- What diligence dictment, have a restitution, without making any fresh suit, the entitle the statute seeming to require no more, in order to entitle the party party toresti, thereto, than that the indicted be found guilty, or otherwise at tution. tainted; yet Hawkins inclines to the opinion, that if it plainly appear to the court, that the party hath been guilty of gross neglect in prosecuting the offender, he is not entitled to a restitution, as the latter part of the statute, which ordains that writs of restitution shall be awarded as if the felon were attainted on appeal, seems only to intend that the prosecutor of an indictment shall have the like remedy in that respect, as the plaintiff in an appeal; and it is certain that if the plaintiff in an appeal ap. peared to have been guilty of such a neglect, he could not demand a restitution by the common law, and it can hardly be imagined to be the intention of the makers of the statute to give the party a greater benefit, from a conviction grounded on his own evidence, as a conviction on an indictment may be, than from a conviction on the evidence of others, as a conviction in appeal must be. 2 Hawk. c. 23. s. 56.

IX. The rewards for apprehending of felons, and other

offenders.

[1.] As to robberies in highways *] By 4 & 5 Will. & Highwaymen, Mar. c. 8, Whoever shall apprehend and take one or more thief or robber, in any highway, or road in England or Wales, and prosecute him or them, till he or they be convicted of any robbery committed in or upon any highway +, passage, field, or open place, shall receive from the sheriff of the county, without paying any fee for the same, for every such offender so convicted, 401. within one month after such conviction, and demand thereof made, by tendering a certificate to the said sheriff, under the hand or hands of the judges or justices, before whom such felon or felons shall be convicted; and in case any dispute shall arise between the persons so apprehending any the said thieves and robbers, touching their right to the said reward, then the said judge or justices so certifying, shall by their said certificate, appoint the said reward to be paid in such shares as to them shall seem just; and if such sheriff shall

* See

p. 423. supra.

And by 6 Geo. 1. c. 23. s. 8, The streets of London and Westminster, and other cities, towns, and places shall be deemed and taken to be highways to all intents and purposes within the intent and meaning of this act.

Gratuity in case of death.

dic or be removed before the expiration of one month after such conviction, and demand made, then the next sheriff shall pay the same within one month after demand and certificate brought as aforesaid: and the sheriff making default in paying the said sum shall forfeit to the person to whom it is due, double as much as he ought to have paid, to be recovered in any of the courts at Westminster, with treble costs.

8. 2.

And in case any person shall be killed by such robber, en. deavouring to apprehend or in making pursuit after him, then the executors or administrators, or person to whom administra tion shall belong (upon certificate of the judge or justices of assize for the county where the fact was done, or the two next justices of the peace, of such person being so killed, which certificate the said judge or justices, upon proof, are imme diately to give without fee) shall receive 401. from the sheriff; and upon failure of payment thereof by the said sheriff, double the said sum, with treble costs as aforesaid. And all sheriffs, upon producing such certificates and the are to be reim- receipts for the money by them paid, shall be allowed upon accounting, all monies (other than the double sums and costs) which they shall disburse without fee. s. 4.

How sheriffs

bursed.

A further reward.

comers.

s. 3.

And if upon the account of any sheriff, there shall not be monics in the hands of such sheriff to reimburse him, then the sheriff shall have the same repaid by the treasury out of the revenue of the crown, upon certificate from the clerk of the pipe. s. 5.

And every person who shall apprehend, prosecute, or convict such robber, as a further reward, shall have the horse, furni ture, and arms, money, or other goods of the said robber that shall be taken with him, any their majesties right or title, bodies politic or corporate, or the right and title thereunto of the lord of any manor, liberty, or franchise, or of them lending or letting the same to hire to any such robber, notwithstanding. But this shall not take away the right of any person to such horses, furniture, and arms, money, or other goods, from whom the same were before feloniously taken. s. 6.

And by 6 Geo. 1. c. 23. s. 8, All certificates signed upon the conviction of any robbery, shall be signed and paid without any deduction, fee, or reward, excepting not exceeding 5s, for the writing and drawing thereof, upon pain of forfeiting the sum of 401. to the person entitled to the certificate, on the ac count of which such fee or reward was taken, to be recovered in any court of record at Westminster."

Reward for ap-[2] As to counterfeiters and clippers of the coin.] By 6 &7 prehending Will. 3. c. 17. s. 9, Whoever shall apprehend any person who hath counterfeited any of the current [gold or silver] coin of this realm, or for lucre clipt, washed, filed, or otherwise di minished the same, or brought into this kingdom any clipt false, or counterfeit coin;

Or, by 15 Geo. 2. c. 28. s. 7, Who hath committed any of the offences therein made high treason*, or felony, or who shall have made or counterfeited any of the copper money, called a halfpenny, or a farthing.

And shall prosecute any of such offenders until he be thereof convicted, such prosecutor shall receive from the sheriff of. the county or city, where such conviction shall be, for every such offender so convicted of any of the treasons or felonies aforesaid, the sum of 40l. and for every person so convicted of counterfeiting any of the said copper money 10l. without paying any fee for the same, within one month after such conviction, and demand thereof made, by tendering a certificate to the said sheriff or his under sheriff, under the hands of the judge or justices before whom such conviction was, certifying such convic tion, and that the offender was apprehended and prosecuted by the persons claiming the reward, and directing in what shares it is to be paid and divided; which certificate the said judge or justices are to give without delay or fee; and if the sheriff shall not pay the reward within the time, he shall forfeit to such prosecutors severally, double the sum by the certificate directed to be severally paid to them, to be recovered in any court at Westminster, with treble costs; and such sheriff shall be allowed such rewards, upon his accounting without fee, and if he shall not on passing such account have money sufficient in hand,`then the same shall be paid by the treasury, out of the revenues of the crown, on certificate from the clerk of the pipe. s. 7.

[3] As to burglars, housebreakers, persons privately Shoplifting,&c. stealing to the value of 58. in any shop, warehouse, coachhouse, or stable, and horse stealers.] It is enacted by 10 & 11 Will. 3. c. 23, after reciting that the crimes of burglary, and breaking open of houses in a felonious manner, and the crime of stealing goods privately out of shops and warehouses, commonly called shoplifting, and the stealing of horses had of late year's much encreased, that whosoever shall take and prosecute to conviction any person guilty of any such felonies, shall have a certificate thereof gratis from the judge or justice, expressing the parish or place where such felony was committed; and if any dispute shall happen about the right to such certificate, the

By this act of 15 Geo. 2. c. 23, The altering of shillings and sixpeness to make them resemble gumeas and half-guineas, or hiltpennics and farthings, to make them look like shillings and sixpences, is made high treason. See TREASON.

† And the uttering false money a third time, after two former convictions; or altering it twice on the same day, or within ten days after, knowingly, is by the same act made felony without benedit of clergy. See Coin, vel. i. p 509.

See s. 1. of this act, p. 408, supra, whereby persons privately stealing by day or night, to the value of 5. out of any shop, warehouse, couchhouse, or stable, are excluded the benefit of clergy.

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