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the bill of indictment (i): and by 10 & 11 Vict. c. 82, and 18 & 19 Vict. c. 126, similar powers are given to justices at petty sessions, dealing with offences under those Acts, in the exercise of their summary jurisdiction. And, though there is no general provision on this subject with regard to misdemeanors, the costs of prosecution are provided for in the same way, in reference to a great variety of cases, by the particular Act under which the misdemeanor is punishable (k). Moreover, by 29 & 30 Vict. c. 52, it is now further provided, that the justices before whom a prisoner is brought and examined (though no committal for trial shall take place thereon) may grant to any witness called and examined, a certificate of his expenses; which expenses are to be allowed out of the county rate : provided always the charge be made bonâ fide on reasonable and probable cause. And, finally, by 30 & 31 Vict. c. 35, s. 5, the court before which any person is tried for any felony or misdemeanor may, in its discretion, order that there shall be paid to any witness who was bound over by the examining magistrate to give evidence on behalf of the person accused, a sum of money in reasonable compensation for his expenses, trouble and loss of time, as part of the expenses of the prosecution (1).
(i) Even if no bill is preferred, (1) We may remark here, that the court before whom any person costs are also, in other cases, somehas been summoned to attend by times allowed to defendants in recognizance or subpæna, may com- criminal proceedings. For by 4 & 5 pensate him for expenses incurred W. & M. c. 18, if the prosecutor, on and trouble and loss of time, either an information filed by the Master in attending such court or the exam- of the Crown office, does not try ining justices. (7 Geo. 4, c. 64, within a year after issue joined, or 8. 22.)
if the defendant be acquitted by (k) See in particular the follow- verdict, or a nolle prosequi be ening enactments:-10 & 11 Vict. c. tered, the Queen's Bench may award 82; 13 & 14 Vict. c. 101; 14 & 15 costs to the defendant,-unless the Vict. c. 55, s. 3; 19 & 20 Vict. c. 16, judge before whom it is tried cers. 13; 24 & 25 Vict. c. 96, s. 121; tifies in open court on the trial that c. 97, s. 77; c. 98, s. 54; c. 99, s. 42; there was a reasonable ground for c. 100, s. 77.
the prosecution. See also 19 & 20
2. By the common law there was no restitution of goods upon an indictment, because it is at the suit of the Crown only; and therefore the party was enforced to bring an appeal of robbery, in order to have his goods again (m). But afterwards, by statute 21 Hen. VIII. c. 11, where any person was convicted of larceny by the evidence of the party robbed, such party was to have full restitution of his money, goods and chattels, or the value of them out of the offender's goods, (if he had any,)-by a writ to be granted by the justices. And afterwards, it became the practice for the court, upon the conviction of a felon, to order, without any writ, immediate restitution of such goods as were brought into court, to be made to the several prosecutors (n). And though the statute of 21 Hen. VIII. is repealed (0), a writ or order of restitution may now, in many cases, be issued under the provision of 24 & 25 Vict. c. 96, s. 100(p); which enacts that if any person, guilty of any felony or misdemeanor mentioned in that Act (9), in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving, any chattel, money, valuable security, or other property, shall be indicted for the same, by or on behalf of the owner, his executor or administrator, and be convicted thereof,—the property shall, in such case, be restored to the owner or such his representative; and the court shall have power to award, from time to time, writs
Vict. c. 16, ss. 25, 26; and 25 & 26 509. Vict. c. 65, s. 12, as to the expense (0) By 7 & 8 Geo. 4, c. 27. of witnesses for prisoners, tried (P) Re-enacting 7 & 8 Geo. 4, under those Acts.
c. 29. s. 57, repealed by 24 & 25 (m) 3 Inst. 242. As to an appeal,
Vict. c. 95. vide sup. p. 378.
(9) An exception, however, is (n) There is no power, either at made with regard to prosecutions of common law or by statute, for a trustees, bankers and other agents judge to give any direction as to the for misdemeanors under the Act, in disposal of chattels found on a felon, respect of goods or documents of which do not belong to the prose- titles entrusted to them. (24 & 25 cutor. See The Queen o. The Cor- Vict. c. 96, s. 100.) poration of London, 1 Ell. Bl. & Ell.
of restitution for such property, or to order the restitution thereof in a summary manner (r). This, however, is subject to a proviso as to valuable securities, that no restitution shall be awarded if before the award thereof it shall appear that they shall have been bona fide paid or discharged by some person liable to the payment thereof;
or, (being negotiable instruments,) shall have been bona fide taken by transfer or delivery, by some person for a just and valuable consideration ;-provided, that is, such person had no notice or reasonable cause to suspect that they had been stolen, taken, obtained, extorted, embezzled, converted or disposed of by means of any felony or misdemeanor.
[It is to be observed with respect to restitution after conviction, that it reaches the goods so stolen, notwithstanding the property of them is endeavoured to be altered by sale in a market overt(s); a doctrine which, though it may seem somewhat hard on the buyer, yet the rule of law is, that spoliatus debet, ante omnia, restitui : 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,
(r) The Queen's Bench has no power in such cases to award a writ or order restitution, which must be obtained from the court convicting the offender. (The Queen v. Lord Mayor of London, Law Rep., 4 Q. B. 371.) A similar power is given to the justices of the peace, on their summarily convicting a juvenile offender of larceny, under the provisions of 10 & 11 Vict. c. 82; 13 & 14 Vict. c. 37 ; or on their exercising the summary jurisdiction conferred on them in certain cases of larceny, by 18 & 19 Vict. c. 126.
(s) i Hale, P. C. 543; 4 Bl. Com. 363. Even without any award of restitution, the party may peaceably
retake his goods wherever he happens to find them, unless a new property have been fairly acquired therein. And he may bring an action of trover against any one who has bought them, after he has prosecated the thief to conviction. (Scattergood v. Sylvester, 15 Q. B. 506.) He may also bring an action against the felon after conviction, in case he receives a pardon. But such actions lie not before conviction ; for so felonies would be made up and healed; and also recaption is unlawful, if done with intention to smother or compound the larceny. (4 Bl. Com. 363.) As to compounding felony, vide sur. p. 332.
(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.] In reference, however, to the above doctrine, notice may be taken of the following provision in the 30 & 31 Vict. c. 35, s. 9,—viz., that where a prisoner has been convicted of any offence which includes the stealing of any property, and it shall appear to the court that the prisoner has sold such property to one who had no knowledge that the same was stolen, 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 a sum, not exceeding the proceeds of the sale, to be delivered to the purchaser out of any monies which may have been taken from the prisoner on his apprehension. Moreover, by the 33 & 34 Vict. c. 23, ss. 3, 4, the court is now enabled to condemn an offender, who has been convicted of treason or felony, (the same statute abolishing the former rule that on such conviction his property was forfeited to the crown,) to pay the costs of the suit; and also, on the application of any person aggrieved, a sum of money by way of compensation not exceeding 1001.
OF JUDGMENT AND ITS CONSEQUENCES.
We are now to consider the next stage of criminal prosecutions after trial and conviction are past, - which is that of judgment (a). For when, upon a charge of felony, the jury have, in the presence of the prisoner, brought in their verdict, “guilty,” he is either immediately, or at a convenient time soon after, asked by the court, if he has anything to offer why judgment should not be awarded against him. And, upon a charge of misdemeanor, in case the defendant be found guilty in his absence, (as he may be,) a capias is thereupon issued, to bring him in to receive his judgment; and, if he absconds, he may be prosecuted even to outlawry; but no corporal punishment can in any case be awarded against a defendant, unless he be personally present (b). But whenever he appears in person, he may at this period offer any exceptions to the indictment, in arrest of judgment (c): as for
(a) Vide sup. p. 344.
(6) Hawk. P. C. b. 2, c. 48, s. 17. The defendant must in all cases be personally before the court, in order to move in arrest of judgment. (Com. Dig. Indictment, N.) And to enable him so to move, he must, in capital cases, be asked, before judgment "what he has to say why “ judgment of death should not be " pronounced against him.” (Ibid.)
(c) At this period of the proceedings it was that the prisoner formerly
might avoid a judgment of death, by praying the benefit of clergy; it being more usual to resort to this, after conviction, than by way of plea to the indictment (as to which, vide sup. p. 397, n.). This benefit of clergy constituted, in former times, so remarkable a feature in our criminal law, and a general acquaintance with its nature is still so important for the illustration of our books, that it may be desirable to subjoin here some fur