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Where owner shall have his goods again without prosecution.

Restitution by 31 El. c. 12.horses.

Where not.

Stolen goods of several owners.

Owner may re

perty.

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 thereor, or, being a negotiable instrument, shall have been bona fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice, or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, or converted as aforesaid, in such case the court shall not award or order the restitution of such security."

If goods be stolen, and not waived in flight, nor seized by the king's officers or lord of the manor, nor sold in open market, the owner may take them again without any writ of restitution, or may bring his action for them; and this, although he doth not prosecute the offender. 2 Haw. c. 23. § 49. Kel. 48.

And by stat. 31 El. c. 12., where horses are stolen, and sold in open market, and the owner claims them again within six months, and pays the buyer as much as they cost him, he shall have them again without prosecution.

But otherwise, if the goods be waived by the felon in his flight, or in case they be not waived, yet if they be seized by the king's officers, or lord of the manor, as suspecting them to be stolen; there the party shall not have restitution, unless the felon be convicted at his prosecution. 2 Haw. c. 23. § 49. Kel. 48.

Where the goods of several persons are found upon the thief, the practice is, after the felon is convicted upon one indictment, for the court to order restitution to all who are ready to prosecute; but strictly the owner is not entitled to have the restitution of more goods than those specified in the indictment, for the offender might have escaped by the omission. 2 East, P. C. 789.

Trover being brought for some sheep, defendant pleaded that take stolen pro- certain unknown persons had stolen the said sheep from plaintiff, and had brought them into a manor belonging to the queen, and left them there, and that defendant as her bailiff had taken them, as waifs, to her use. Held, on demurrer, that they were not legally waived or forfeited, and that the owner may take them when he will. Foxley's case, 5 Co. 109 (a).

Civil remedy for an injury

after an acquit

tal for the offence.

The money for which the stolen goods were sold.

An action of assault having been brought for a very serious injury, by stabbing under circumstances which would have made it a capital felony under 43 G. 3., and it appeared that defendant had been tried for it, and acquitted; the court held, that after a bond fide acquittal, as well as after a conviction, the party injured might have his remedy by civil action. Crosby v. Leng, 12 East, 409.

A man stole cattle, and sold them in open market; the sheriff seized the thief and the money, and he was convicted and hanged at the prosecution of the owner of the cattle, and he had restitution of the money; for though the statute gives power to the justices to award restitution of the money or goods stolen, and though the money in this case was not stolen; yet, because it did arise by stealing, it shall be within the equity, though not in the very words of the statute. Noy, 128.

But it hath been a great question, if goods be stolen and by the thief sold in the market overt, whether, the thief being convicted upon the evidence of the party robbed, he shall have restitution upon this statute of the thing sold or not, the buyer not being privy to the felony; but Ld. Hale argues strongly, that he shall have restitution, notwithstanding the sale in market overt of the goods stolen. 1. Because this act was made to encourage persons robbed to pursue malefactors, and therefore they have an assurance of restitution; and it would be small encouragement if a thief, by a sale in a market overt, which is every day almost in every shop in London, should elude it. 2. Because the man that is robbed is robbed against his will, and cannot help it; but the buyer of stolen goods may choose whether he will buy, or if he buy, may yet refuse to buy unless well secured of the property of the goods, or knowing the owner. 1 Hale, 542, 543, 544. 2 Haw. c. 23. § 55. Kel. 48.

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and resale of stolen goods before convic

tion.

But the owner of goods stolen, prosecuting the felon to con- Purchase in viction, cannot recover their value in trover from a person who market overt, purchased them in market overt and sold them again before conviction; notwithstanding that the owner gave him notice of the robbery while they were in his possession. Indeed, if he could maintain such action, he might recover with equal propriety against any one of the various persons through whose hands the goods might have passed in the intermediate time between the felony and conviction; during which period the property remains in dubio, liable to be defeated by the attainder. The plaintiff, however, has a right to restitution, and perhaps would be entitled to recover damages in trover against any person who was fixed with the goods after conviction, and refused to deliver them; for then the goods would be converted to the prejudice of the owner. Horwood v. Smith, 2 T. R. 750.

Neglect in pro

If it shall appear to the court that the party hath been guilty of a gross neglect in prosecuting, it seemeth that in such case he secuting. shall not be entitled to restitution. 2 Haw. c. 23. § 56.

Action against felon after par

If a felon be convicted and pardoned, or be allowed his clergy, the party robbed may bring his action of trover against him for his goods, and recover a satisfaction in damages. But such action don, &c. lies not before prosecution, for so felonies would be made up and healed. 4 Bl. Com. 363. 1 Hale, 546.

Aliter before prosecution.

In trover for a mare, it appeared that it had been stolen from. Owner not the plaintiff, and afterwards sold to defendant: but that plaintiff doing his had taken no steps for bringing the thief to justice. Best C. J. duty in prodirected a nonsuit, on the ground that the plaintiff had not done secuting. his duty to the public in respect to the prosecution of the felon. Gimson v. Woodfull, 2 C. & P. N. P. 41.

If the owner take his goods again of the offender, to the intent Retaking goods to favour him, or maintain him, this is unlawful, and punishable to favour felon by fine and imprisonment; but if he take them again without any is punishable. such intent, it is no offence. 1 Hale, 546.

But after the felon is convicted, it can be no colour of crime to take his goods again, where he finds them; because he hath pursued the law upon him, and may have his writ of restitution, if he pleases. 1 Hale, 546.

VOL. III.

3 B

Aliter as to tak ing them after

conviction.

What is an unlawful assem

bly.

What a rout.

What a riot.
A.

Numbers as

sembled under

circumstances to endanger the peace, and

create terror; an unlawful assembly.

Persons joining and giving

Riot, Rout, and unlawful Assem-
bly. — Training to Arms, te.

I. What is a Riot, Rout, or unlawful Assembly.
[3 G. 4. c. 114. -7 & 8 G. 4. c. 30.]

II. How the same may be restrained by a Private Person.
III. How by a Constable or other Peace Officer.

IV. How by one Justice- and of the Riot Act.

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[2 Ed. 3. c. 3. 34 Ed. 3. c. 1.-1 G. 1. st. 2. c. 5.1 & 2 W. 4. c. 41.]

V. How by two Justices.

[13 H. 4. c. 7.-2 H. 5. c. 8.-19 H. 7. c. 13.]

VI. How by Process out of Chancery.

[2 H. 5. c. 8.—2 H. 5. c. 9.8 H. 6. c. 14.] VII. Seditious Meetings and unlawful Assemblies - Training to Arms,

[39 G. 3. c. 79.57 G. 3. c. 19.60 G. 3. c. 1.]

1. What is a Riot, Rout, or unlawful Assembly. WHEN three persons or more shall assemble themselves together,

with an intent mutually to assist one another against any who shall oppose them, in the execution of some enterprise of a private nature, with force or violence, against the peace, or to the manifest terror of the people, whether the act intended were of itself lawful or unlawful; if they only meet to such a purpose or intent, although they shall after depart of their own accord, without doing any thing, this is an unlawful assembly.

If after their first meeting they shall move forward towards the execution of any such act, whether they put their intended purpose in execution or not, this, according to the general opinion,

is a rout:

And if they execute such a thing indeed, then it is a riot. (A.) 1 Haw. c. 65. § 1. Dalt. c. 136. pp. 310, 311.

It is now settled on high authority, that any meeting of great numbers of people, with such circumstances of terror as cannot but endanger the public peace, and raise fears and jealousies among the king's subjects, seems properly to be called an unlawful assembly; as, where great numbers complaining of a common grievance meet together, armed in a warlike manner, in order to consult together concerning the most proper means for the recovery of their interests; for no one can foresee what may be the event of such an assembly. So, in recent cases it has been ruled, that an assembly of great numbers of persons, which, from its general appearance and accompanying circumstances, is calculated to excite terror, alarm, and consternation, is generally criminal and unlawful; and all persons who join an assembly of this kind, disregarding its

probable effect, and the alarm and consternation which are likely to countenance to ensue, and all who give countenance and support to it, are criminal it, are parties. parties. 1 Russ. 254., and the authorities there cited.

Prisoners being indicted for a riot and also for an unlawful Riot and unlawassembly, and it appearing that they had met tumultuously and cut ful assembly; down fences in Dean Forest :- per Patteson J. The difference be- distinction. tween a riot and unlawful assembly is this: if the persons assemble in a tumultuous manner and execute their purpose with violence, it is a riot; but if they merely meet upon a purpose which, if executed, would make them rioters, and having done nothing, they separate without effecting their purpose, it is an unlawful assembly. Orford Sum. Ass. 1831, R. v. Birt and others, 5 Car. & P. 154.

A rout seems to be a disturbance of the peace by persons assem- Assembly probling together with an intention to do a thing, which, if it be ceeding towards executed, will make them rioters, and actually making a motion acts of riot. towards the execution of their purpose. And it seems, by the recitals in several statutes, that if people assemble themselves, and afterwards proceed, ride, go forth, or move, by instigation of one or several conducting them, this is a rout, inasmuch as they move and proceed in rout and number. 1 Russ. 254.

In some cases, however, it may be not only lawful, but an act of duty, to collect an assemblage for the purpose of using force; as for a sheriff or constable to get together a competent number of people to suppress rebels, or enemies, or rioters, or for a justice of peace to raise the posse to get the better of resistance in making an entry into lands, &c., or for the sheriff or other minister of justice having the execution of the king's writs; but it is said not to be lawful for them to raise a force for the execution of a civil process, unless they find a resistance; and it is certain, that they are highly punishable for using any needless outrage or violence. 1 Russ. 247.

If the jury acquit all but two, and find them guilty, the verdict is void, unless they be indicted together with other rioters unknown, because it finds them guilty of an offence, whereof it is impossible that they should be guilty; for there can be no riot where there are no more persons than two. 2 Haw. c. 47. § 8.

Moving at the instigation of a

leader.

Where the law authorises force, an assemblage will not be

riotous.

Not less than

three can be guilty of a riot.

R. v. Scott and Hans, 3 Burr. 1262. Six persons were indicted; Two alone may whereof two died before trial, two were acquitted, and two con- be convicted. victed. It was moved in arrest of judgment, for that two only could not be found guilty of a riot, unless they were indicted together with other persons unknown; which was not the case here; for it doth not appear that any others were guilty besides these two here is no finding as to the two dead persons. Ld. Mansfield. Six were indicted. Two of them are acquitted. Two are dead untried. The jury have found the other two guilty of a riot; consequently it must have been with one or both of those who have not been tried; as it could not otherwise have been a riot.

By

Women are punishable as rioters; but infants, under the age Women. of discretion, are not persons, within the aforesaid description, Infants. punishable as rioters. 1 Haw. c. 65. § 14.

Note.

-In 1 Haw. pp. 156, 157, 158. (folio edition), the words more than three persons are three times over inserted instead of persons or more; which is only remarked as an instance, that,

three

Sudden affray.

Assemblage in defence of a

man's house or person there.

Distinction.

Aider of riot.

Riot must be in a matter of

in a variety of matter, it is impossible for the mind of man to be always equally attentive. See 1 Russ. 247.

It seems agreed, that if a number of persons being met together at a fair, or market, or church aisle, or on any other lawful and innocent occasion, happen on a sudden quarrel to fall together by the ears, they are not guilty of a riot, but of a sudden affray only, of which none are guilty but those who actually engage in it; because the design of their meeting was innocent and lawful, and the subsequent breach of the peace happened unexpectedly, without any previous intention concerning it. Yet it is said, that if persons innocently assembled together, do afterwards, upon a dispute happening to arise among them, form theinselves into parties. with promises of mutual assistance, and then make an affray, they are guilty of a riot; because, upon their confederating together with an intention to break the peace, they may as properly be said to be assembled together for that purpose from the time of such confederacy, as if their first coming together had been on such a design. 1 Haw. c. 65. § 3. 1 Russ. 249, 250.

An assembly of a man's friends for the defence of his person against those who threaten to beat him, if he go to such a market, &c. is unlawful; for he who is in fear of such insults must provide for his safety by demanding the surety of the peace against the persons by whom he is threatened, and not make use of such violent methods, which cannot but be attended with the danger of raising tumults and disorders, to the disturbance of the public peace. But an assembly of a man's friends at his own house, for the defence of the possession of it against such as threaten to make an unlawful entry, or for the defence of his person against such as threaten to beat him in his house, is indulged by law; for a man's house is looked upon as his castle. He is not, however, to arm himself and assemble his friends in defence of his close. Per Heath J., R. v. the Bishop of Bangor, Shrewsbury Sum. Ass. 1796, 1 Russ. 254.; and see the authorities there cited.

And the law is, that if any person encourages, or promotes, or takes part in riots, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himself to be considered a rioter; for in this case all are principals. Per Mansfield C. J., in Clifford v. Brandon, 2 Camp. 370.

It also seems agreed, that the injury or grievance complained of and intended to be revenged or remedied by such an assembly private concern. must relate to some private quarrel only; as the inclosing of lands in which the inhabitants of a town claim a right of common, or gaining the possession of tenements the title whereof is in dispute, or such like matters, relating to the interest or disputes of particular persons, and no way concerning the public; for wherever the intention of such an assembly is to redress public grievances, as to pull down inclosures in general, or reform religion, and the like, it is high treason. 1 Haw. c. 65. § 6.

Circumstances of terror neces

sary.

It seems to be clearly agreed, that in every riot there must be some such circumstances, either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people, as the shew of armour, threatening speeches, or turbulent gestures; for every such offence must be laid to be done in terrorem populi. And from hence it clearly follows that assemblies at wakes, or other festival times, or

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