Estreating Recognizances at Sessions-Recognizances, in certain cases, not to be estreated without Order of the Court.]—Section 31 of 7 G. IV. c. 64, s. 31, after reciting that the practice of indiscriminately estreating recognizances for the appearance of persons to prosecute or give evidence, or to answer for a common assault, or in the other cases hereinafter specified, has been found in many instances productive of hardship to persons who have entered into the same, enacts, that, in every case where any person bound by recognizance for his or her appearance, or for whose appearance any other person shall be so bound to prosecute or give evidence, in any case of felony or misdemeanour, or to answer for any common assault, or to articles of the peace (c), or to abide an order in bastardy, shall therein make default, the officer of the court by whom the estreats are made out, shall and is hereby required to prepare a list in writing, specifying the name of every person so making default, and the nature of the offence in respect of which every such person, or his or her surety, was so bound, together with the residence, trade, profession or calling of every such person and surety; and shall in such list distinguish the principal from the sureties; and shall state the cause, if known, why each such person has not appeared; and whether, by reason of the non-appearance of such person, the ends of justice have been defeated or delayed; and every such offender shall and is hereby required, before any such recognizance shall be estreated, to lay such list, if at a court wherein a recorder or other corporate officer is the judge, or one of the judges, before such recorder or other corporate officer; and if at a session of the peace, before the chairman or two other justices of the peace who shall have attended such court, who are respectively authorized and required to examine such list, and to make such order touching the estreating or putting in process of any such recognizance as shall appear to them respectively to be just; and it shall not be lawful for the officer of any court to estreat or put in process any such recognizance without the written order of the recorder, chairman, or justices of the peace before whom such list shall have been made.

The estreating and putting in process such forfeited recognizances as shall be ordered by the court to be so dealt with, is carried out under 3 G. IV. c. 46, and 4 G. IV. c. 37. The clerk of the peace, after the session has expired, copies on a roll the fines, issues, amercia ments, forfeited recognizances, sum or sums of money paid or to be

(c) Reg. v. Yorkshire (Justices, W. R.), Thornton, in re Dr., 7 Ad. & E.

583, seems contra, but this enactment was not mentioned.

paid in lieu or satisfaction of them or any of them, which have been certified to him by any justices within the preceding quarter, pursuant to 3 G. IV. c. 46, s. 2, with all the same matters imposed or forfeited at the immediately preceding session. A copy of this sent to the sheriff with process, authorizes him to levy the amount on the party's goods, or in default to lodge him in gaol till the next sessions, there to abide the judgment of the court (d). On giving security for his appearance there to abide their decision and pay the forfeited recognizance, with expenses ordered by the court, he may be discharged out of custody (e).

The next session is authorized to inquire into the circumstances in those cases only, in which the party upon whom the levy is made has been committed to gaol, or has given security to appear at the sessions; and has power in such cases (ƒ) to order the discharge of the whole of the forfeited recognizance, or sum of money paid or to be paid in lieu or satisfaction thereof, or of any part thereof (g); but they have no such authority where the party pays the money at once in order to get out of trouble (h).

If, after entering into a recognizance for keeping the peace before a single justice or in petty sessions, the conusor is convicted of an assault within the time limited, the return of a record of that conviction to the quarter sessions will not authorize that court to order an estreat of the recognizance under 3 G. IV. c. 46, s. 2, for they cannot in a summary way try the fact of misbehaviour committed out of their own court. The recognizance ought to be removed into the exchequer, and after suing out a scire facias thereon, a breach of the recognizance should be assigned, so as to enable the party pleading, to show cause against the alleged forfeiture of his recognizance (i).

Since 3 G. IV. c. 46, has been substituted for 22 & 23 C. II. c. 22, by the repeal of the latter act, the court of exchequer no longer retains any jurisdiction over two sorts of forfeited recognizances, viz. those before justices out of sessions, and those at the quarter sessions (j). It seems imperative on the court of quarter sessions, by the clerk of the peace, to put the law in motion, to levy the amount of all recog

(d) 7 W. IV. & 1 V. c. 91, s. 2. (e) Sect. 5.

(f) Sect. 6; and see ante, p. 87. (g) Haynes v. Hayton, 7 B. & C. 293; 2 C. & P. 621, S. C.

(h) Per Cur. in Reg. v. Yorkshire (W. R. Justices), 7 Ad. & E. 593, re

marking on Haynes v. Hayton.

(i) Reg. v. Yorkshire (W. R. Justices), in re Dr. Thornton, 7 Ad. & E. 583.

(j) R. v. Hankins, M'Clell. & Y. 27, as stated per Cur. 7 Ad. & El. 590.

nizances forfeited at the quarter sessions (1), that is, if ordered by them to be estreated (m); but if they have not power legally to order the estreat, (e. g. if the proof before them was only of a proceeding had elsewhere, viz. conviction for assault, in arriving at which adjudication the fact of a recognizance to keep the peace having been previously given, or of its being forfeited, could not by possibility come into question,) their order may be removed by certiorari and quashed (n).

The act 3 G. IV. c. 46, has an intelligible and ample operation, if considered as directed to the more speedy levying of sums due upon (inter alia) recognizances, lost or forfeited as well before justices out of sessions as at the quarter sessions itself, for matters immediately connected with its own proceedings, without at all interfering with the method or authority by which they may legally be put into execution -and leaving untouched any question of how they may be legally forfeited, so as to afford jurisdiction to estreat them (o).

With the ulterior proceedings in the court of exchequer on estreated recognizances we have nothing here to do, except to observe, that, till they are so estreated, that court will exercise no jurisdiction (p).

SECTION VIII.

OF RESTITUTION OF GOODS OBTAINED BY THEFT OR FRAUD.

Restitution of Goods Stolen or obtained by Misdemeanour.]-The last subject to be touched upon is appertaining, though somewhat remotely, to the conclusion of the justices' authority in sessions,that of restitution of goods stolen or unlawfully obtained, 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: 2ndly. By a statute 28 H. VIII. 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,

(1) Reg. v. Yorkshire (W. R. Justices), in re Thornton, 7 Ad. & El. 591. (m) 7 G. IV. c. 64, s. 31 (not cited in Reg. v. Yorkshire, W. R., Justices). (n) S. C.

(0) See the intricate judgment in 7 Ad. & E. 592.

(p) R. v. Thompson, 3 Tyr. R. 87, and other cases cited. Ante, p. 95.

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."

3rdly. By common law (q). 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) immediate restitution of such goods as are brought into court, to be made to the several prosecutors (r). 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 (s).

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 (t).

At common law, where goods had been obtained from another by mere fraud, the court had no power to award restitution by the offender, as in cases of felony (u).

But now, by statute 7 & 8 G. IV. C. 29, s. 57, "to encourage the prosecution of offenders," it is enacted, "That if any person, guilty of any such felony or misdemeanour as aforesaid, in stealing, taking, obtaining, (viz. by false pretences, see sect. 53,) or converting, or in knowingly receiving any chattel, money, valuable security, or other

(g) 1 Hale, 538.

(r) Loft, R. 88; 4 Bla. Com. 363. (8) 3 Bla. Com. 4.

(t) Hawk. B. 2, c. 23.

(u) 2 East, P. C. c. 16, s. 17; c. 18, s. 14; Parker v. Patrick, 5 T. R. 175; R. v. Deveaux and others, 2 Leach, 665.

property whatever, shall be indicted for any such offence, by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative; and the court before whom any such person shall be so convicted shall have power to award, from time to time, writs of restitution for the said property, or to order the restitution thereof in a summary manner: provided always, that if it shall appear before any award or order made, that any valuable security shall have been bona fide paid or discharged by some person or body corporate, liable to the payment thereof, or, being a negociable instrument, shall have been bond fide taken or received by transfer, or delivery, by some person or body corporate, for a just or valuable consideration, without any notice, or without any reasonable cause to suspect that the same had by any felony or misdemeanour been stolen, taken, obtained, or converted as aforesaid, the court in such case shall not award or order the restitution of such security." This clause applies to property abstracted by any of the offences punishable under this act; by larceny at common law; stealing all descriptions of property not previously the subjects of larceny, but made punishable by the act, whether as felony or misdemeanour; by false pretences; and to convictions for receiving all kinds of property so protected, whether the thief be known or not, and whether he be or be not amenable to justice. In all these cases, if the property be forthcoming at the trial, the court will at once order it to be restored; and if not, may, at any time, order a writ of restitution to issue. It has been held that this clause does not empower a court to order a Bank of England note which has been paid and cancelled, to be delivered up to the prosecutor of an indictment for stealing it (v).

It is now quite settled that the party, whose negociable securities have been fraudulently or feloniously abstracted, cannot recover them from any holder who has taken them for value without fraud, and under circumstances presenting no ground of reasonable suspicion (w).

This provision of 7 & 8 G. IV. c. 29, s. 57, that restitution shall not be awarded in a case of a security bona fide paid, or being transferable by delivery, transferred for value without fraud, is in analogy with the decisions as to the rights of owners in such cases at common law.

(v) R. v. Stanton, 7 C. & P. 431. Central Criminal Court.

(w) This was decided as to bank notes, in Lowndes v. Anderson, 13 East, 130; and Solomons v. The Bank of England,

13 East, 135, n.; as to exchequer bills, in Woolley v. Pole, 4 B. & Ald. 1, and applies also to cheques, and all orders for payment of money to the bearer.