First offenders.]-See ante, p. 243.

Merchandise marks.]-On a prosecution under the Merchandise Marks Act, 1897, the court may order the defendant to pay costs to the prosecutor, having regard to the conduct of the parties. 50 & 51 Vict. c. 28, s. 14.

Sexual offences.]-On conviction of a misdemeanor indictable under the Criminal Law Amendment Act, 1885, or of indecent assault, the court may order the defendant to pay the costs, as in cases of felony; and every order for the allowance and payment of such costs shall be made out, and the sum of money mentioned therein shall be paid and repaid upon the same terms and in the same manner in all respects as in cases of felony. 48 & 49 Vict. c. 69, s. 18.

SECT. 4.

REWARDS.

ANY court of oyer and terminer or gaol delivery may, if any person shall appear to have been active in or towards the apprehension of any person charged with any of the following offences, order payment to such person of such a sum of money as shall seem reasonable and sufficient to compensate for his expenses, exertions, and loss of time :viz., in cases of "Murder "-(see R. v. Durkin, 2 Lewin, 163)—" Feloniously and maliciously shooting at, or attempting to discharge any kind of loaded fire-arms at any other person "Stabbing "—' -" Cutting Poisoning" "Administering anything to procure the miscarriage of any woman Rape"-" Burglary" (R. v. Dunning, 5 Cox, 142)— Felonious housebreaking "- -"Robbery on the person " (but not stealing from the person: R. v. Thompson, 1 Cox, 43)-" Arson "- "Horse stealing"-" Bullock stealing" (which includes all cases of cattle stealing of that particular description, e.g., ox, cow, heifer, etc.: R. v. Gilbrass, 7 C. & P. 444)" Sheep stealing"-" Being accessory before the fact to any of the offences aforesaid "-" Receiving stolen property, knowing it to have been stolen." 7 G. 4, c. 64, s. 28. The amount of these rewards is in addition to any costs, etc., as witness, and is unaffected by the regulations as to costs. 7 G. 4, c. 64, s. 28; 14 & 15 Vict. c. 55, s. 7; and see ante, p. 246. The like power is extended, by 14 & 15 Vict. c. 55, s. 8, to courts of sessions of the peace, with respect to such of the above offences as they have jurisdiction to try, but the compensation is limited to the sum of £5.

Such rewards are not confined to cases where the person apprehending has had an actual loss of time, or been at an expense. R. v. Barnes, 7 C. & P. 166. They are said not to extend to cases where the offender has escaped from England. R. v. Barrett, 6 Cox, 78. But they have been given for display of courage; R. v. Womersley, 2 Lewin, 162; and for locking burglars in a room till help arrived. R. v. Dunning, 5 Cox, 142. The order is made out by the clerk of the court on the sheriff of the county in which the offence was committed, who must pay the amount at sight to the person named or his authorized representative, and is entitled to immediate recoupment by the Treasury. 7 G. 4, c. 64, s. 29. Under the Local Government Act, 1888 (51 & 52 Vict. c. 41, s. 100), the rewards appear to be payable from the same funds as the costs of assizes and sessions. If the facts, whether as to expense, exertion, or loss of time, on which the application is grounded have not appeared in evidence, the judge will require them to be laid before him on affidavit. The power of a secretary of state (which has not yet been exercised)

to make regulations as to the scale of costs, extends to the amount of rewards to be paid, except where the court consider that extraordinary courage and diligence towards apprehension was shown, in which case the court may adjudge any reward which it deems reasonable, subject to the limit of £5 imposed on courts of quarter sessions. 14 & 15 Vict. c. 55, ss. 6, 7, 8. See R. v. Jones, 7 C. & P. 167 : R. v. Haines, 5 Cox, 114.

A person who discovers and prosecutes to conviction a person at large without licence during a term of penal servitude is entitled to a reward of £20, payable by order of the court before whom the conviction is made, out of the county funds. 5 G. 4, c. 84, s. 22: R. v. Emmons, 2 M. & Rob. 279: R. v. Ambury, 6 Cox, 79.

7 G. 4, c. 64, s. 30. Compensation to relatives of persons killed in arresting felons.]—If any man shall happen to be killed in endeavouring to apprehend any person charged with any of the offences before mentioned, the court may order the sheriff of the county to pay a sum of money to his widow, if he were married; or to his children, in case his wife be dead; or to his father or mother, in case he shall have left neither wife nor child. Under the Act the sheriff is entitled to immediate recoupment from the Treasury.

In R. v. Platel (C. C. C., May, 1903) an order was made by Grantham, J., for the payment of £233 to the widow and family of a man who was shot and killed in endeavouring to arrest a man who had shot a police constable. See 38 L. J. Newsp. 273.

CHAPTER VII.

COMPENSATION AND RESTITUTION OF PROPERTY.

SECT. 1. Compensation, p. 263.

2. Restitution of property, p. 265.

SECT. 1.

COMPENSATION.

Relation of civil and criminal remedies.]—As a general rule, the remedies for civil injuries and crimes cannot be enforced in the same proceeding. In a few cases the court which tries an indictable offence is authorized by statute to award compensation to persons injured by it. Compensation to the relatives of persons killed in arresting certain offenders is dealt with ante, p. 262.

The Forfeitures Act, 1870 (33 & 34 Vict. c. 23), provides (s. 4), that "it shall be lawful for any such court as aforesaid (i.e., for any court by which judgment shall be pronounced or recorded, see s. 3), if it shall think fit, upon the application of any person aggrieved, and immediately after the conviction of any person for felony, to award any sum of money not exceeding one hundred pounds, by way of satisfaction or compensation for any loss of property suffered by the applicant through or by means of the said felony, and the amount awarded for such satisfaction or compensation shall be deemed a judgment debt due to the person entitled to receive the same from the person so convicted, and the order for payment of such amount may be enforced in such and the same manner as in the case of any costs ordered by the court to be paid under the last preceding section of this Act." The discretionary power given by this section is not confined to cases of larceny or cognate offences, as to which see post, p. 265, but does not extend to personal injuries. As to its exercise, see R. v. Lovett, 11 Cox, 602. The cases in which it is most easily applied are to the compensation of persons who are required under a restitution order to give up property obtained by larceny and transferred to them before conviction. But the courts usually act under 30 & 31 Vict. c. 35, s. 9 (post, p. 266). Compensation for injuries to property may be awarded in lieu of a conviction on summary prosecution for a first offence against the Larceny Act, 1861 (24 & 25 Vict. c. 96, s. 108), or the Malicious Damage Act, 1861 (24 & 25 Vict. c. 97, s. 66).

And occasionally, where proper compensation is made to a person injured, the court refrains from imposing punishment for an offence.

Except in the cases above referred to, it is not usual to allow civil and criminal proceedings in respect of the same act or omission to be carried on concurrently. In the case of misdemeanors, there never seems to have been ruling that concurrent proceedings might not be taken. But until comparatively recent date, it was considered that the civil remedy in cases of injury by a felonious act could not be pursued until the completion of the prosecution of the alleged felon. In Crosby v. Leng,

12 East, 413; 11 R. R. 437, Lord Ellenborough says, "The policy of the law requires that before the party injured by any felonious act can seek civil redress for it, the matter should be heard and disposed of before the proper criminal tribunal, in order that the justice of the county may be first satisfied in respect of the public offence; and after the verdict, either of conviction or acquittal, the judgment is so far conclusive in any particular matter, that the objection is thereby removed of bringing that sub judice in a civil action which was the proper subject of a criminal prosecution." Similar views are expressed in Stone v. Marsh, 6 B. & C. 551 ; 5 L. J., K. B. (O. S.) 201: Marsh v. Keating, 1 Mont. & A. 662; 8 Bligh, N. S. 651; 2 Cl. & F. 250 ; 37 R. R. 175: ex parte Bolland, Mont. & Mac. 397; and ex parte Elliott, re Jermyn, 3 Mont. & 4. 110.

Another mode of stating this rule is that the King's rights to the forfeitures of felons would be defeated by a failure to prosecute the offender effectively, and an acquittal by collusion of the prosecutor would debar him from his civil remedy. Crosby v. Leng, ubi supra. The rule was also explained on the ground that it was the duty of the person injured by a felony to prosecute before suing. But this has been questioned in Ward v. Lloyd, 7 Scott, N. R. 499, 507, Maule, J.; and Wells v. Ábrahams, L. R. 7 Q. B. 554, 663, Lush, J. The rule barred proof in bankruptcy as well as suits at law or in equity: ex parte Elliott, ubi supra; but did not bar an action where the felon had been convicted and executed for another felony; ex parte Bolland, ubi supra: nor actions against persons other than the felon in possession of the proceeds of the felony, unless it were larceny and the stolen goods had been sold in market overt: White v. Spettigue, 11 M. & W. 603: Lee v. Bayes, 18 C. B. 599: nor to an action by A.'s master against B. for loss of servant caused by felonious act of B.'s servant: Osborn v. Gillett, L. R. 8 Ex. 88.

A distinction seems to have once been drawn between actions of trespass or other tort and actions of debt: see Master v. Miller, 4 T. R. 322, Buller, J.; but it has now evaporated, and the authorities now lay down as follows:

(1) Money obtained by theft or forgery is a debt due to the loser of it, which is sufficient consideration for the assignment of the offender's property to the injured person. Chowne v. Baylis, 31 L. J. (Ch.) 757; 31 Beav. 351: Ex parte Ball, 10 Ch. D. 667, where all the cases are collected: but where a debt arises out of a felonious act by the debtor the civil remedy may have to be postponed until public justice is satisfied. Where the plaintiff, who claimed to be a creditor for the amount paid by him on a forged cheque had commenced a prosecution for the forgery upon which a bill was found and the prisoner arraigned, abstained from bringing on the trial by the direction of the judge, who thought the ends of justice were satisfied by sentencing the prisoner on an indictment for another forgery to which he pleaded guilty, it was held that the plaintiff had done enough to satisfy the rule of law, and that his civil remedy revived. Dudley, etc., Banking Co. v. Spittle, 1 J. & H. 14: Ex parte Ball, 10 Ch. D. 667: Ex parte Leslie, Re Guerrier, 20 Ch. D. 131; 51 L. J. (Ch.) 689. The acquittal of the accused on an indictment for felony is no bar to an action for civil injury arising out of the incriminated acts, unless the plaintiff colluded with the defendant in procuring the acquittal. Crosby v. Leng, 12 East, 409.

(2) Where the felonious act also constitutes a trespass it used to be considered that the trespass merged in the felony. Markham v. Cobb, Sir W. Jones, 147; Noy, 82: Higgins v. Butcher, Yelv. 89: Lutterell v. Reynell, 1 Mod. 282: White v. Spettigue, 13 M. & W. 603. But it is now held that the criminal remedy merely, suspends, or must precede, the civil remedy.

Most of the authorities with reference to the basis and extent of the rule are discussed in Wells v. Abrahams, ubi supra: in Midland Insurance Co. v. Smith, 6 Q. B. D. 561; 50 L. J. (Q. B.) 329 : A. v. B. 24 L. R. Ir. 235, reported also as S. v. S. 16 Cox, 566 (a), and in Ex parte Ball, 10 Ch. D. 667. In the last case, Bramwell, L.J., suggested four theories to support the supposed rule. 1. That no cause of action arises at all out of the felony. 2. That it does not arise till prosecution. 3. That it arises on the act, but is suspended till prosecution. 4. That there is neither defence nor suspension of the claim by or at the instance of the felon debtor, but that the court, of its own motion or on the suggestion of the crown, should stay proceedings till public justice is satisfied. He indicates the difficulties of each theory, but accepts Wellock v. Constantine, 2 H. & C. 146, as establishing the existence of the rule, and see also per Baggallay, L.J., at p. 673.

Whatever be the true theory, the rule is now in a state of suspended animation because of the decisions above cited. Apparently, it can only be enforced, if at all, by application to stay proceedings in such cases as suggested by Blackburn, J., in Wells v. Abrahams, L. R. 7 Q. B. at p. 559. The objection cannot be taken by plea, and is not a ground for non-suit, id., nor for demurrer. Roope v. D'Avigdor, 10 Q. B. D. 412. The question, however, only indirectly affects the subject of the present work. As to the illegality of compromises or arrangements to settle criminal proceedings, see post, tit. "Compounding Offences."

SECT. 2.

RESTITUTION OF PROPERTY.

Common Law.

AT common law the court of King's Bench could award a writ of restitution as part of its judgment on an appeal of larceny; but this power ceased on the abolition of these appeals by 59 G. 3, c. 46 (rep.). R. v. Mayor, etc., of London, L. R. 4 Q. B. 371; S. C. 38 L. J. (M. C.) 107; 11 Cox, 280; sub nom. Walker v. Mayor, etc., of London. 21 H. 8, c. 11 (which is now repealed and is replaced by 24 & 25 Vict. c. 96, s. 100, below), empowered the court of trial to award restitution on conviction on indictment (see 2 Hawk. c. 23, ss. 49-57), but gave no authority to the court of King's Bench. Id.

Statutes.

2 & 3 Ph. & M. c. 7; 31 Eliz. c. 12 (restitution of horses). These Acts are not repealed by the Sale of Goods Act, 1893, see 56 & 57 Vict. c. 71, s. 22 (2); but are now rarely used: see Moran v. Pitt, 42 L. J. (Q. B.) 47 : Josephs v. Adkins, 2 Stark. (N. P.) 76; 19 R. R. 677. Chalmers, Sale of Goods (5th ed.), p. 147, n.

24 & 25 Vict. c. 96 (Larceny Act, 1861), s. 100-Restitution of Property.] -If any person guilty of any such felony or misdemeanor as is mentioned in this Act, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving, any chattel, money, valuable security, or other property whatsoever, shall be indicted for such offence by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property (a) As to colonial law, see White v. McKiel, 28 New Brunswick, 39.