enacted (b), "that where the king's majesty shall be pleased to extend his royal mercy to any offender convicted of any felony punishable with death, or otherwise, and by warrant under his sign manual, countersigned by one of his principal secretaries of state, shall grant to such offender either a free or conditional pardon, the discharge of such offender out of custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal, for such offender, as to the felony for which such pardon shall be so granted. Provided always, that no free pardon, nor any such discharge in consequence thereof, nor any conditional pardon, nor the performance of the condition thereof, in any of the cases aforesaid, shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any felony committed after the granting any such pardon." This pardon has since received the effect of a pardon under the great seal (c).

Offenders receiving Pardons on condition of Imprisonment to be kept to Hard Labour.]-Offenders sentenced to transportation, or pardoned on condition of imprisonment, may be confined in the Penitentiary, at Milbank, until they can be sent to the place of their destination, or even till the expiration of the term of their sentence (d). If any person ordered to be confined in the Penitentiary shall, during the term for which he shall be ordered to confinement, break prison, or escape from the place of confinement, or in his conveyance to such place of confinement, or from the person having the' custody of such offender, he shall be punished by an addition of three years to the term for which he, at the time of his breach of prison, or escape, was subject to be confined and if such person so punished by such addition to the term of confinement, shall afterwards be convicted of a second escape, or breach of prison, he shall be transported beyond the seas for life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years (e), with or without hard labour, and with or without solitary imprisonment, not exceeding one month at any one time, and three months in any one year, at discretion of the court (f).

(b) 7 & 8 G. IV. c. 28, s. 13. See R. v. Haddenham, 15 East, 463. (c) 9 G. IV. c. 32, s. 3.

(d) 56 G. III. c. 63; 59 G. III. c.

136.

(e) 59 G. III. c. 136, s. 17, as amended by 7 W. IV. & 1 V. c. 91, s. 1.

(ƒ) 7 W. IV. & 1 V. c. 91, s. 2.

Voluntary Transportation.]—It sometimes happens, that a prisoner obtains a pardon after sentence of transportation, on condition of giving security by recognizance, that he will banish himself. If he fail in the condition, he will himself indeed be guilty of no crime cognizable by the law, but the recognizances will be forfeited, and of course estreated. But another case sometimes occurs, which calls for

a single observation; viz. that of an offender of a higher station than ordinary, whose punishment would be imprisonment, if sentence were passed, and who, to avoid the ignominy, or inconvenience of imprisonment, solicits permission, after conviction, but before sentence, to exchange imprisonment by sentence for a voluntary transportation. The gratuitous commutation also (though by an augmentation of punishment in the eye of the law), is to be accomplished after the same manner; viz. by recognizance; which, being an engagement of record to the court, is considered sufficient security to warrant a sentence of a nominal fine, and a delivery of the offender to his sureties.

SECTION VII.

OF FORFEITED RECOGNIZANCES AND ESTreats.

Estreating Recognizances.]-What has been just advanced respecting these recognizances in open court (operating to a certain degree, like conditional pardons, as commutations of punishment), brings us to consider the estreating of recognizances.

Recognizances, as has been more than once observed, being only the means pointed out by the law to secure the performance of certain conditions imposed by it (g), their estreat is the consequence of the failure of those conditions. A breach, therefore, of them, while the court continues sitting, can only be considered, as it were, incipient; to be completed and confirmed by a continuance of default, or to be superseded and avoided by compliance before the expiration of the session. So that, though the moment a recognizance is taken it becomes a record, yet it had always been the practice, that, upon the party bound by recognizance appearing in court, or doing any other act imposed by the conditions, exhibiting a satisfactory affidavit of any sufficient reason for his non-compliance with the terms, for the court, on motion being made for that purpose, to take off (as it is termed) the

(g) See R. v. Dover (Mayor, &c.), 5 Tyr. 279; 1 Cromp. & M. 726.

estreat in that particular instance. Supposing the authority of the court to have been thus exercised, what is to follow must depend on the circumstances of each particular case. If appearance in court were the only object to be obtained, that appearance may be attended with all the consequences in contemplation; or a respite of the question to be discussed may be granted by the same authority which has superseded the estreat; or a new recognizance may be required in open court; or, lastly, if the affidavit be insufficient to procure these consequences, the estreat will be confirmed.

Recognizances at Sessions not to be Estreated in certain cases without Order of the Court.]-Section 31 of 7 G. IV. c. 64, 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 (h), 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

(h) Reg. v. West Riding, Yorkshire (Justices,), in re Dr. Thornton, 7 Ad. & E. 583, ante, p. 604, seems con

tra, but this enactment was not mentioned.

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 thus carried out. The clerk of the peace, after the session has expired, copies on a roll the fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be 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 (ante, p. 109), 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 (i). 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 (k).

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 in those cases has power (1) 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 (m); but they have no such mitigating authority where the party pays the money at once in order to prevent the sale of his goods taken in execution (n).

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, 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

7 W. IV. & 1 V. c. 91, s. 2.
Sect. 5.

(1) Sect. 6.

(m) Haynes v. Hayton, 7 B. & C. 293; 5 M. & Ryl. 307; 2 C. & P. 621, S. C. Secus, if only part is so paid,

and defendant is in execution for the residue, S. C.

(n) Per Cur. in Reg. v. West Riding, Yorkshire (Justices), in re Dr. Thornton, 7 Ad. & E. 593, remarking on Haynes v. Hayton.

enable the party pleading to show cause against the alleged forfeiture of his recognizance (o).

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 taken before justices out of sessions, and those at the quarter sessions (p). 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 recognizances forfeited at the quarter sessions (q), that is, if ordered by them to be estreated (r); 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 (s).

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 (t).

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 (u), and that a motion to discharge a defendant from estreated recognizances, must be preceded by a notice to the solicitor of the treasury (x). If a party taken in execution on a recognizance so estreated denies its existence, he must traverse it in the exchequer (y). New rules have been made in the queen's bench on the subject of estreats of recognizances in that court (z).

(0) Reg. v. West Riding, Yorkshire (Justices), in re Dr. Thornton, 7 Ad. & E. 583. See R. v. Tomb, 10 Mod. 278. (p) R. v. Hankins, M'Clell. & Y. 27, as stated per Cur. 7 Ad. & El. 590.

(g) Reg. v. West Riding, Yorkshire (Justices), in re Thornton, 7 Ad.& El.591. (r) 7 G. IV. c. 64, s. 31, (not cited in Reg. v. Yorkshire, W. R., Justices). (8) S. C.

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

(u) R. v. Thompson, 3 Tyr. R. 87, and other cases cited. Ante, p. 111. (y) Stowell, ex parte, 13 L. J. (Exch.), 328.

(x) Tipton, in re, 3 D. P. C. 177. A constat from the estreat office is also requisite, R. v. Holden and Clough, 3 Tyr. 580.

(z) See rules, &c. for practice of crown office, made pursuant to 6 V. c. 20, (nos. 23, 24); Archbold's Crown Practice, Introduction, p. li.