FOREIGN SERVICE. the powers of government, every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon being convicted thereof, upon any information or indictment, be punished by fine and imprisonment, or either 59 Geo. 3, c. 69. of them, at the discretion of the Court before which such offender shall be Misdemeanor. convicted." Sect. 9. "Offences made punishable by the provisions of this act, committed out of the united kingdom, may be prosecuted and tried in his Majesty's Court of King's Bench at Westminster, and the venue in such case laid at Westminster, in the county of Middlesex." Offences commit ted out of the kingdom may be tried at Westminster. How penalties sued for and re covered. Sect. 10. " Any penalty or forfeiture inflicted by this act, may be prosecuted, sued for, and recovered, by action of debt, bill, plaint, or information, in any of his Majesty's Courts of record at Westminster or Dublin, or in the Court of Exehequer, or in the Court of Session in Scotland, in the name of his Majesty's attorney-general for England or Ireland, or his Majesty's advocate for Scotland respectively, or in the name of any person or persons whatsoever; wherein no essoign, protection, privilege, wager of law, nor more than one imparlance shall be allowed; and in every action or suit the Double costs. person against whom judgment shall be given for any penalty or forfeiture under this act shall pay double costs of suit; and every such action or suit Limitation of acshall and may be brought at any time within twelve months after the of- tions. fence committed, and not afterwards; and one moiety of every penalty to be recovered by virtue of this act shall go and be applied to his Majesty, his heirs or successors, and the other moiety to the use of such person or persons as shall first sue for the same, after deducting the charges of prosecution from the whole." Sect. 11. "If any action or suit shall be commenced, either in Great Britain or elsewhere, against any person or persons for any thing done in pursuance of this act, all rules and regulations, privileges and protections, as to maintaining or defending any suit or action, and pleading therein, or any costs thereon, in relation to any acts, matters, or things done, or that may be done by any officer of customs or excise, or by any officer of his Majesty's navy, under any act of Parliament in force on or immediately before the passing of this act, for the protection of the revenues of customs and excise, or prevention of smuggling, shall apply and be in full force in any such action or suit as shall be brought for any thing done in pursuance of this act, in as full and ample a manner to all intents and purposes as if the same privileges and protections were repeated and re-enacted in this act." Sect. 12. "Nothing in this act contained shall extend, or be construed to extend, to subject to any penalty any person who shall enter into the military service of any prince, state, or potentate in Asia, with leave or licence signified in the usual manner from the governor-general in council, or vice president in council, of Fort William in Bengal, or in conformity with any orders or regulations issued or sanctioned by such governor-general or vice president in council." By the annual mutiny act persons persuading soldiers to desert are made punishable by fine or imprisonment, or both. See tit. Military Law, Vol. III. Disobedience to letters from the King to a subject commanding him to return from beyond the seas, or to his writ of ne exeat regno, or proclamation commanding the subject to stay at home, is "a high misprision and contempt;" 4 Blac. Com. 122; and if the subject neglects to return from beyond the seas when commanded, his lands shall be seized till he does return. 1 Hawk. P. C. c. 22, s. 4. Former rules established by law to be applied to actions commenced in pursuance of this act. Penalties not to extend to persons entering into military service in Asia. Mutiny act. Prerogative of ne exeat regno, &c. And, in the words of Mr. Hawkins, "it is a high offence for any subject Refusing to assist to deny the King that assistance for the good of the public, either in his councils or wars, which by the law he is bound to give him.” 1 Hawk. c. 22, s. 2. his Majesty in council, &c. Forest. See Game, Vol. II. post, p. 875. Derivation. Repeal of statutes against offence. Forestalling, Engrossing, and Regrating (a). [5 & 6 Edw. VI. c. 14; 12 Geo. III. c. 71.] FORESTALLING (forestallan, or forestallan) in the English Saxon, signifieth properly to market before the public, or to prevent the public market; and metaphorically, to intercept in general; and seemeth derived from fore, which is the same as before, and stalle, a standing place or department; from whence sprang the ancient word stallage, which signifieth money paid for erecting a stall or stand for the selling of goods in a fair or market. Ingrossing is from in, and gross, great or whole. And regrating, from re, again, and the French grater, to grate or scrape; and signifieth the scraping or dressing of cloth or other goods in order for selling the same again. There have been several statutes made from time to time against these offences in general, and also especially with respect to particular species of goods according to their several circumstances; almost all of which, from stat. 5 & 6 Edw. VI. c. 14, and others downwards, made for enforcing the Offence punishable same, are repealed by stat. 12 Geo. III. c. 71. But these offences still continue punishable upon indictment at the common law by fine and imprison at common law. 5 & 6 Edw. 6, c. 14. Forestaller, ment. And at the common law all endeavours whatsoever to enhance the common price of any merchandize, and all kinds of practices which have an apparent tendency thereto, whether by spreading false rumours, or by buying things in a market before the accustomed hour, or by buying and selling again the same thing in the same market, or by any other such like devices, are highly criminal, and punishable by fine and imprisonment. 1 Hawk. e. 80, s. 1. By the common law, a merchant bringing victuals into the realm may sell the same in gross: but no person can lawfully buy within the realm any merchandize in gross, and sell the same in gross again, without being liable to be indicted for the same. 3 Inst. 196. The bare ingrossing of a whole commodity, with an intent to sell it at an unreasonable price, is an offence indictable at common law, whether any part thereof be sold by the ingrosser or not. 1 Hawk. c. 80, s. 3. And so jealous is the common law of all practices of this kind, that it will not suffer corn to be sold in the sheaf; perhaps for this reason, because, by such means, the market is in effect forestalled. 1 Hawk. c. 80, s. 4. By the stat. of 5 & 6 Edw. VI. c. 14, these offences were particularly described; which statute, though now repealed as aforesaid, yet may be of use as containing a parliamentary exposition of the respective terms denoting the several particular offences; and is as follows: any Whosoever shall buy, or cause to be bought, any merchandize, victual, or any other thing whatsoever, coming by land or by water, toward any market or fair to be sold in the same, or coming towards any city, port, haven, creek, or road from any parts beyond the sea to be sold; or make bargain, contract, or promise, for the having or buying the same, or any part thereof, so coming as is aforesaid, before the said merchandize, victuals, or other things shall be in the market, fair, city, port, haven, creek, or road, ready to be sold; or shall make any motion by word, letter, message, or otherwise, to any person for the enhancing of the price, or dearer selling of any thing above mentioned; or else dissuade, move, or stir any person coming to the market or fair, to abstain or forbear to bring or convey any of the (a) See, in general, 1 Russ. on Crimes, 169; 2 Chit. C. L. 532. things above rehearsed to any market, fair, city, port, haven, creek, or road, FORESTALLING, to be sold as aforesaid-shall be deemed a forestaller. &c. Sect. 3. Whosoever shall ingross, or get into his hands by buying, con- 5 & 6 Edw. 6, c. 14. tracting, or promise taking, other than by demise, grant, or lease of land or Ingrosser. tythe, any corn growing in the fields, or any other corn or grain, butter, cheese, fish, or other dead victuals whatsoever, to the intent to sell the same again, shall be deemed an unlawful ingrosser. Sect. 2. And whosoever shall by any means regrate, obtain, or get into Regrator. his hands or possession, in a fair or market, any corn, wine, fish, butter, cheese, candles, tallow, sheep, lambs, calves, swine, pigs, geese, capons, hens, chickens, pigeons, conies, or other dead victual whatsoever, that shall be brought to any fair or market to be sold, and shall sell the same again in any fair or market holden or kept in the same place, or in any other fair or market within four miles thereof, shall be deemed a regrator. It has been observed, that notwithstanding the repeal of stat. 5 & 6 Edw. VI. the offences of forestalling, ingrossing, and regrating, remain punishable at common law; and indeed lamentable would be the plight of the public and of the state, were there no remedy against practices which have been justly termed most heinous offences against religion and morality, and against the established law of the country. In the case of R. v. Waddington, 1 East, 143, 145, which was ably argued R. v. Waddington. at the bar, and well considered by the Court, the following were declared to be among the offences at common law, and not done away by the repeal of stat. 5 & 6 Edw. VI. viz. 1. Spreading false rumours with intent to enhance the price of hops. 2. Endeavouring to enhance the price of hops by persuading dealers, &c. not to take their hops to market, and to abstain from selling for a long time. 3. Ingrossing large quantities of hops, by buying with intent to resell the same for an unreasonable profit, and thereby to enhance the price. 4. Getting into hand large quantities, by contracting with various persons for the purchase, with intent to prevent the same being brought to market, and to resell at an unreasonable profit, and thereby greatly to enhance the price. 5. Unlawfully ingrossing by buying large quantities, with like intent. 6. Ingrossing hops then growing, by forehand bargains, with like intent. To forestall any commodity which is become a common victual and necessary of life, or is used as an ingredient in the making or preservation of any victual, though not formerly used or considered as such, is an offence at common law. R. v. Waddington, 1 East, 143. But, at the present day, it would probably be holden that no offence is committed unless there is an intent to raise the price of provisions by the conduct of the party, for the mere transfer of a purchase in the market where it is made, the buying articles before they arrive at a public market, or the purchasing of a large quantity of a particular article, can scarcely be regarded as in themselves necessarily injurious to the community, and, as such, indictable offences; a party buying and selling again, does not necessarily increase the price of the commodity to the consumer, for the division of labour or occupations will, in general, occasion the commodity to be sold cheaper to the consumer; see Smith's Wealth of Nations, Vol. II. 309, and Index, title Labour; and many cases may occur in which a most laudable motive may exist for buying large quantities of the same commodity. See the arguments, &c. in 14 East, 406; 15 East, 511. Indeed, in the case of The King v. Rusby, Hilary Term, 40 Geo. III., the Court were equally divided on the question, whether regrating is an indictable offence at common law, and though the defendant was convicted, no judgment was ever passed upon him. MSS. 2 Chit. Crim. Law, 528, n. An indictment for ingrossing "a great quantity" of fish, geese, and ducks, was holden bad; for the quantity of each ought to be specified. R. v. Gilbert, 1 East, 583. The punishment for these offences is fine or imprisonment, or both. Indictment must state the quantity. Punishment. This offence is now of rare occurrence, or, at all events, the offender is rarely, if ever, proceeded against; it is deemed, therefore, not necessary to insert any forms hereon. See precedents of forms of indictments for these offences, 2 Chit. Crim. Law, 536; Archb. Crim. Law. Forfeiture of lands. Copyholds. Forfeiture (@). THE forfeitures for particular offences may be found under their respective titles: here, it is treated of forfeitures in general. As to the levying and estreating of fines and forfeitures, see ante, title Fines and Forfeitures. I. Of Forfeiture of Lands and Goods, 814. [1 Rich. III. c. 3; 17 Edw. II. c. 16; 54 Geo. III. c. 145]. II. Of Loss of Dower, 817. [1 Edw. VI. c. 12; 5 & 6 Edw. 6, c. 11]. III. Of Corruption of Blood, 817. I. Of Forfeiture of Lands and Goods. It seems agreed that, by the common law, all lands of inheritance, whereof the offender was seised in his own right, and also all rights of entry to lands in the hands of a wrong doer, are forfeited to the King, by an attainder of high treason, and to the lord of whom they are immediately holden by an attainder of petit treason or felony. 2 Hawk. c. 49, s. 1. But it seems clear that the lord cannot enter into the lands holden of him, upon an escheat for petit treason or felony, without a special grant, till it appear by due process that the King hath had his prerogative of the year, day, and waste. Id. s. 3. Concerning which year, day, and waste, it is enacted by the 17 Edw. II. c. 16, that the King shall have the goods of all felons attainted, and fugitives, wheresoever they be found. And if they have freehold, it shall be forthwith taken into the King's hands, and the King shall have all profits of the same by one year and one day; and the land shall be wasted and destroyed in the houses, woods, and gardens, and in all manner of things belonging to the same land. And after the King hath had the year, day, and waste, the land shall be restored to the chief lord of the fee, unless that he fine before with the King for the year, day, and waste. From the 54 Geo. III. c. 145, it appears that no attainder except for high treason, petit treason, or murder, or for abetting the same, shall extend to the disinheriting of any heir, &c. See the act ante, title Attainder, Vol. I. All copyhold estates are forfeited to the lord and not to the King, unless there be some act of Parliament or express custom to the contrary. I Cruise, 361. But, to entitle him thereto, the attainder must be complete, 3 B. & A. 510, unless there be an express custom entitling him to it on mere conviction. 2 Ventr. 38. And the ford must, it seems, do some act towards seizing the copyhold. In a late case, where a copyholder was convicted of a capital felony, but was pardoned on condition of remaining two years in prison, (a) As to forfeiture in general, see the law fully collected in 1 Chit. Crim. Law, 727 to 742; Com. Dig. Forfeiture; Bac. Ab. Forfeiture. It is thought fit in this edition not to enlarge much on this title, the same not being peculiarly applicable to the general purposes of this work, and being on a subject of a very intricate nature. and the lord did not do any act towards seizing the copyhold, it was held that, at the expiration of the two years, the copyholder might sue in ejectment for the land, inasmuch as the pardon restored his competency, and the estate would not vest in the lord without some act done. Doe d. Evans v. Evans, 5 B. & C. 584. OF FORFEITURE As to forfeiture of goods, it seems agreed that all things whatsoever which Forfeiture of are comprehended under the notion of a personal estate, whether they be goods. in action or possession, which the party hath or is entitled to in his own right, and not as executor or administrator to another, are liable to such forfeiture, in the following cases: 1. Upon a conviction of treason or felony. 2 Hawk. c. 49, s. 13. 2. Upon a flight found before the coroner, on view of a dead body. Id. s. 14; Lambert v. Taylor, 6 D. & R. 188; 4 B. & C. 138, S. C. 3. Upon an acquittal of a capital felony, if the party be found to have fled. 2 Hawk. c. 49, s. 14. 4. Also a person indicted of petit larceny, and acquitted, yet if it be found he fled for it, forfeits his goods as in case of grand larceny. 1 Hale, 530; 2 Hawk. c. 49, s. 14. But it is certain that the party may in all cases, except that of the coroner's inquest, traverse the finding of the flight. Also it seems agreed that the particulars of the goods found to be forfeited, may be also traversed. 2 Hawk. c. 49, s. 14. 5. Upon a presentment by the oaths of twelve men that a person arrested for treason or felony, fled from or resisted those who had him in custody, and was killed by them in the pursuit or scuffle. Id. s. 16. 6. By being waived or left by a felon in his flight, whereby he forfeits the goods so waived, whether they be his own, or the goods of others stolen by him, which shall not be restored to the right owners, but upon a proper prosecution. Id. s. 17. 7. Also a convict within clergy forfeits all his goods, though he be burnt in the hand; yet thereby he becomes capable of purchasing other goods. 2 Hale, 388, 389. But, on burning in the hand, he ought to be immediately restored to the possession of his lands. 2 Hale, 389. 8. If a person be found felo de se, he shall forfeit his goods and chattels, but not his lands. 3 Inst. 54; 5 Rep. 109. Upon outlawry in treason or felony, the offender shall lose and forfeit as Forfeiture upon much as if he had appeared, and judgment had been given against him, as outlawry. long as the outlawry is in force. Wood's Inst. b. 4, c. 5. And those that tarry till the exigent in treason, felony, or petit larceny, forfeit their goods, though they render themselves to justice, and are acquitted; for it was a flight in law. Id. But where the killing a man in his own defence is in the law no felony, Forfeiture in se there is no forfeiture unless he fled; for that is a distinct forfeiture, although defendendo. the party be not guilty of the fact. 1 Hale, 493. Every description of personal property is in general included in this forfeiture. Co. Lit. 391 a; Noy, 155; 2 Hawk. c. 49, s. 9. Choses in action and possession, and rights of action, are forfeited alike to the crown without office found. 2 B. & A. 258; 1 Chit. C. L. 732, 2nd ed. But property which he holds as the personal representative of another, is not, in general, forfeited like his own. 2 Hawk. c. 49, s. 9. If a man pledges goods, and afterwards is attainted of felony, the King shall not have the goods pledged without paying the sum for which they were pledged. Bro. Ab. Pledges, pl. 31. See 1 Stark. Rep. 319. Description of personal property. relate. It seems agreed that the forfeiture, upon an attainder, either of treason To what time the or felony, shall have relation to the time of the offence, for the avoiding of forfeiture shall all subsequent alienations of the land, but only to the time of the conviction or flight found, as to chattels; unless the party were killed in flying or resisting, in which case it is said that the forfeiture of the chattels shall relate to the time of the offence. 2 Hawk. c. 49, s. 30. See further as to when the forfeiture begins to run. 1 Chit. C. L. 735, VOL. II. |