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goods are in his possession at the time of conviction. The effect of a sale of stolen goods in market overt is to alter the property in them, to take it out of the original owner from whom the goods were stolen and to vest it in the purchaser and any person claiming under him, but it re-vests in the original owner on the conviction of the thief, and he is then entitled to the order of restitution as against any person in whose possession it may then be (Horwood v. Smith, supra).

But where property stolen from the plaintiff and sold by the thief to the defendant, but not in market overt, and the plaintiff gave notice to the defendant of the felony, who afterwards but before the conviction of the thief sold the property in market overt, it was held that the plaintiff might recover from the defendant (Peer v. Humphry, 2 Ad. & Ell. 495). In Lindsay v. Cundy (1 Q. B. D. 348; 45 L. J. Q. B. 381; 34 L. T. 314; 24 W. R. 370; and on appeal, 2 Q. B. D. 96; 46 L. J. Q. B. 233; 36 L. T. 345 ; 3 Cox C. C. 583; 25 W. R. 417; and on appeal to the House of Lords, 3 App. Ca. 459; 47 L. J. Q. B. 481; 38 L. T. 573; 14 Cox C. C. 493; 26 W. R. 406), where by the nature of the false pretences the property in the goods does not pass to the party so procuring them, the original owner may by action recover them from a bona fide purchaser from such party. There "A. Blenkarn,” writing from Wood Street and signing "A. Blenkarn & Co." (but so written as to look like "A. Blenkiron & Co."), ordered goods of plaintiffs, who being deceived by the signature sent the goods ordered, but at the same time supposed that they were dealing with "A. Blenkiron & Co." an old-established firm in Wood Street. The fraud was discovered, and Blenkarn convicted of obtaining goods by false pretences. Before such conviction he had sold some goods to defendants, who bought bona fide and ignorantly of the fraud, and had themselves sold such goods to other parties. This was an action for conversion, and it was held that the plaintiffs intended to deal with "A. Blenkiron & Co.," and therefore there was no contract with Blenkarn, and therefore the property in the goods never passed from the plaintiffs, and that they were entitled to recover in such action.

In R. v. JJ. of Central Criminal Court, 17 Q. B. D. 598; 50 J. P. 727; 55 L. T. 486; on appeal, 18 Q. B. D. 314; 51 J. P. 229; 56 L. J. M. C. 25; 56 L. T. 352; 16 Cox C. C. 196, on an application for certiorari to bring before the court an order of restitution on the ground that it was made without jurisdiction, it appeared that one F. had been convicted on February 8th, 1886, of obtaining goods on December 16th, 1885, by false pretences from G., and such goods were in the possession of C. H. & Co., on January 1st, 1886, and that C. H. & Co. in January sold them for £108. C. H. & Co. were commission agents employed by the prisoner to sell the goods. On receiving the goods they had advanced £72 to him upon them, and had subsequently sold them, holding the difference (£36) at the time of trial. The court ordered C. H. & Co. to restore to G. £108. The Larceny Act, 1861 (24 & 25 Vict. c. 96), s. 1 defines property to be not only the property originally in the

possession of the owner, but also any property for which the same may have been converted or exchanged. It was held that Lindsay v. Cundy, supra, did not decide that the definition of "property " in s. 1 of the Larceny Act, 1861, did not apply to "property" in s. 100; but that it did not so apply to s. 100 as to give the prosecutor a title to the proceeds of the goods in the hands of an innocent purchaser, who has bought and resold the goods before conviction. "If the goods stolen be in the hands of the criminal or an agent holding for him, the application for restitution should be granted; but if the person holding them does not hold for the criminal, then the application should not be granted. We desire, however, to guard against this case being cited as authority for any other position than this, that the court before which a person is convicted within the terms of the enactment has jurisdiction to entertain an application for restitution of the proceeds of goods, as well as the goods themselves. It must not be supposed that we hold the order was rightly made in point of law."

In R. v. Rolfe, 53 J. P. 823, it was held that a judge has no jurisdiction to make an order that certain pawntickets found when arrested on a person, who has been convicted and sentenced for uttering a forged bill of exchange, should be delivered over to the prosecutor, although there is reason to believe that the goods represented by the pawntickets were purchased by the proceeds of the forged bill.

As to property in goods bought with stolen money, see Cattley v. Lowndes, 34 W. R. 139, and Delaney v. Wallis, 15 Cox C. C. 525. In Bentley v. Vilmont, V. parted with his goods to H., induced to do so by the fraudulent representations of the latter, but under such circumstances that H. acquired a valid title to the goods, unless and until the contract was set aside for fraud. V. prosecuted H. to conviction for obtaining goods by false pretences. Before conviction, the goods were pledged and sold to B., an innocent purchaser, without notice of the fraud, who, therefore, apart from the conviction of H. acquired a good title to the property-Held, overruling Moyce v. Newington, 4 Q. B. D. 32; 14 Cox C. C. 182; 48 L. J. Q. B. 125; 39 L. T. 535; 27 W. R. 319, that the effect of 24 & 25 Vict. c. 96, s. 100, was to re-vest the property in V., and to entitle him to restitution on conviction of H. (12 App. Cas. 471; 51 J. P. 436; 52 J. P. 68; 57 L. T. 584; 57 L. J. Q. B. 18; 3 T. L. R. 824). Since the decision of this case, the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), by s. 24, enacts as follows: "(1) Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen re-vests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise. (2) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not re-vest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender." See the

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Sect. 27.

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opinion hereon of the chairman of the County of London Sessions (North Side) in Reg. v. Koenig, 58 J. P. 641, and also the opinion of the learned editors of the Justice of the Peace at 58 J. P. 288. In the case of Rer v. Walker and Others, 65 J. P. 729, heard before the Recorder of London, in which a person had been convicted of obtaining goods by false pretences or other wrongful means not amounting in law to larceny, and had parted with the goods, it was held that the court cannot make an order of restitution of such goods. If the goods were obtained in such a manner as to amount in law to larceny, the court could make an order of restitution, although the person obtaining the goods has only been convicted of obtaining them by false pretences, and in the case of Rex v. George, 65 J. P. 729, heard before the Common Serjeant of London, where a person has been convicted of obtaining goods by false pretences or other wrongful means not amounting in law to larceny, and the person defrauded has disaffirmed the transaction and the goods or the proceeds thereof are in the possession of the defendant, the court can make an order of restitution of the same. The whole question is very ably set out in Ker and Pearson-Gee's Sale of Goods Act.

Provision as to Valuable and Negotiable Securities.— Section 100 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), also contains a proviso as follows:

Provided, that if it shall appear before any award or order made that any valuable security shall have been bond fide paid by some person liable to pay, or being a negotiable instrument shall have been bona fide taken by some person for a valuable consideration, without any notice or without reasonable cause to suspect that it had been stolen, etc., in such case the court shall not award restitution of such security: Provided also that nothing in this section shall apply to prosecutions of trustees, bankers, etc.

This proviso is for the protection of bona fide holders for value; the property is not restored to the original owner in such cases (Chichester v. Hill, 47 J. P. 324; 31 W. R. 245; 52 L. J. Q. B. 150; 48 L. T. 364; 15 Cox C. C. 258).

Protection of Purchasers.-By the Criminal Law Amendment Act, 1867 (30 & 31 Vict. c. 35), s. 9, post (Appendix) it is provided that where any prisoner shall be convicted, either summarily or otherwise, of larceny or other offence which includes the stealing of any property, and it shall appear to the court by the evidence that the prisoner has sold the stolen property to any person, and that such person has had no knowledge that the same was stolen, and that any moneys have been taken from the prisoner on his apprehension, it shall be lawful for the court, on the application of such purchaser, and on the restitution of the stolen property to the prosecutor, to order that out of such moneys a sum not exceeding the amount of the proceeds of the said sale be delivered to the said purchaser. And upon this section see R. v. Lovett, 11 Cox C. C. 602, where it was observed that the powers given by this section must be exercised with great caution on account of the

tendency to arrangements in the nature of compounding a felony.

By the Prosecution of Offences Act, 1879 (42 & 43 Vict. c. 22, 8. 7, post, in Appendix), a prosecution by the Director of Public Prosecutions is to have the effect of a private prosecution as to enforcement of any right or claim to restitution of property, etc.

See also the Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), s. 30 (2), providing that if a person is convicted (1) summarily of unlawfully, knowingly, and designedly pawning goods; (2) In any court of stealing or obtaining goods and afterwards pawning them; (3) If it appears to the court of summary jurisdiction that any goods have been unlawfully pawned, the court may order the goods to be given up to the owner, with or without payment of the whole or part of the sum advanced.

Further, as to restitution of stolen goods, see an article in 52 J. P. 65.

See also s. 44 of this Act, post, and also the Metropolitan Police Courts Act, 1839 (2 & 3 Vict. c. 71), ss. 27, 28 and 29, as to power in the metropolitan police district to order possession of stolen property, and R. v. D'Eyncourt, L. R. 21 Q. B. D. 109; 52 J. P. 628 ; 67 L. J. M. C. 67.

As to power to make orders with respect to property in the possession of the police, see the Police (Property) Act, 1897 (60 & 61 Vict. c. 30), s. 1.

28. Cost of prosecution of indictable offences dealt with summarily.] Where an indictable offence (the expenses of the prosecution of which would otherwise have been payable out of the local rate) is dealt with summarily in pursuance of this Act by a court of summary jurisdiction, the expenses of the prosecution of such offence shall be payable in manner provided by this section.

The court dealing summarily with any such indictable offence may, if it seem fit, grant to any person who preferred the charge, or appeared to prosecute or give evidence, a certificate of the amount of the compensation which the court may deem reasonable for his expenses, trouble, and loss of time therein, subject, nevertheless, to such regulations as may be from time to time made by a Secretary of State with respect to the payment of costs in the case of indictable offences; and the amount named in the certificate may include the fees payable to the clerk of the court of summary jurisdiction, and the fees payable to the clerk of the peace for filing the conviction depositions and other documents required to be filed by him under this Act, and such other expenses as are by law payable when incurred before a commitment for trial; and every

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Sect. 28. certificate so granted shall have the effect of an order of court for the payment of the expenses of a prosecution for felony, made in pursuance of the Criminal Law Act, 1826, and the Acts amending the same, and the amount named in such certificate shall be paid in like manner as the expenses specified in such order would have been paid. See Form [48] of Consolidated Forms, 1886, post.

Costs of Prosecutor and Witnesses.—With reference to this section see the Criminal Law Act, 1826 (7 Geo. 4, c. 64), ss. 22— 25, and the Criminal Justice Administration Act, 1851 (14 & 15 Vict. c. 55), ss. 2 et seq. (post, Appendix), which deal with the costs of prosecutions as therein mentioned.

There does not appear to be any power under this section to include a fee for the prosecuting solicitor. See the opinion of the editors of the Justice of the Peace (51 J. P. 379).

The order of the Secretary of State as to allowances to prosecutors and witnesses is given in the Appendix (post). See also the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100) (as to assaults), ss. 42, 46 and 77.

Brothel-house Keepers-Costs—Optional Course to Prosecutors. By the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69), s. 13, it is provided that the Disorderly Houses Act, 1751 (25 Geo. 2, c. 36), ss. 5, 6, and 7, as amended by the Disorderly Houses Act, 1818 (58 Geo. 3, c. 70), s. 7, for the encouragement of prosecutions of disorderly houses, “shall, with the necessary modifications, be deemed to apply to prosecutions under this section, and the said enactments shall for the purposes of this section be construed as if the prosecution in such enactments mentioned included summary proceedings under this section as well as a prosecution on indictment." It was held in Kerwin v. Hines, 50 J. P. 230; 54 L. T. 610, that it is optional on prosecutors either to proceed summarily under s. 13 of the Act of 1885, independently of the earlier Acts, or to comply with the procedure under the statutes of Geo. 2 and Geo. 3; and in the latter case only can they obtain the reward provided by the last-named statutes. The procedure under the statutes of Geo. 2 and Geo. 3 must be followed in the most careful manner. In Clarke v. Rice, 1 B. & Ald. 694, an action by one of the two inhabitants who had given information to the parish constable of A. B. keeping a disorderly house, in consequence of which A. B. was prosecuted to conviction, it is necessary in order to recover the sum of £10 from the overseers that the prosecution should have been conducted by the parish constable; and, therefore, where the two inhabitants conducted it, it was held that they were not entitled to the reward.

By s. 13 of the Criminal Law Amendment Act, 1885, the directions contained in 25 Geo. 2, c. 36, s. 6, for the arrest of a person accused by two inhabitants of a parish, of keeping a disorderly house, are applicable to summary proceedings under the