If

till the expiration of the term of their sentence. any person ordered to be confined in the Penitentiary shall, during the term for which he shall be ordered to confinement, break prison, or escape from the place of confinement, or in his conveyance to such place of confinement, or from the person having the custody of such offender, he shall be punished by an addition of three years to the term for which he, at the time of his breach of prison, or escape, was subject to be confined; and if such person, so punished by such addition to the term of confinement, shall afterwards be convicted of a second escape, or breach of prison, he shall be guilty of felony without benefit of clergy. (s) It sometimes happens, that a prisoner obtains a pardon after sentence of transportation, on condi- Gratuitous tion of giving security by recognizance, that he will banish transportation. himself. If he fail in the condition, he will himself indeed be guilty of no crime cognizable by the law, but the recognizances will be forfeited, and of course estreated. But another case sometimes occurs, which calls for a single observation; viz. that of an offender of a higher station than ordinary, whose punishment would be imprisonment, if sentence were passed, and who, to avoid the ignominy, or inconvenience, of imprisonment, solicits permission, after conviction, but before sentence, to exchange imprisonment by sentence, for a voluntary transportation. This gratuitous commutation also (though by an augmentation of punishment in the eye of the law), is to be accomplished after the same manner; viz. by recognizance; which, being an engagement of record to the Court, is considered sufficient security to warrant a sentence of nominal fine, and a delivery of the offender to his sureties.

§7. OF ESTREATS.

What has been just advanced respecting these recogni- Estreats of zances in open Court (operating to a certain degree, like recognizances. conditional pardons, as commutations of punishment), brings us, by a sort of consecutive transition, to a brief consideration of the estreats of recognizances, being one of the matters of which this chapter professes to treat, as arising out of the termination of the Court's authority.

Recognizances, as has been more than once observed, being only the means pointed out by the law to secure the performance of certain conditions imposed by it, the estreat of these recognizances is the consequence of the failure of those conditions. And breach, therefore, of them, while

(s) 59 Geo. 3. c. 136. s. 17.

Restitution of goods stolen or obtained by misdemeanor.

the Court continues sitting, can only be considered, as it were, incipient; to be completed and confirmed by a continuance of default, or to be superseded and avoided by compliance before the expiration of the session. So that, though the moment a recognizance is taken it becomes a record, yet it is every day's practice, and has always been uniformly so, upon the party bound by recognizance to appear in court, or to do any other act imposed by the conditions, on exhibiting a satisfactory affidavit of any sufficient reason for his non-compliance with the terms, for the Court, on motion being made for that purpose, to take off (as it is termed) the estreat in that particular instance. Supposing the authority of the Court to have been thus exercised, what is to follow must depend on the circumstances of each particular case. If appearance in court were the only object to be attained, that appearance may be attended with all the consequences in contemplation; or a respite of the question to be discussed may be granted by the same authority which has superseded the estreat; or a new recognizance may be required in open court; or, lastly, if the affidavit be insufficient to procure these consequences, the estreat will be confirmed.

After the session has expired, the clerk of the peace, or town clerk, (as the case is) makes out a proper estreat, or list of the forfeitures incurred, and the fines inflicted while the session continued; and he is directed by statute (t) to deliver a perfect estreat, or schedule of all fines, issues, amerciaments, and other forfeitures whatever, to the sheriff before Michaelmas, and a duplicate into the Court of Exchequer, by the second Monday after the morrow of All Souls, under not only a heavy pecuniary penalty, but a liability of being discharged from office, and further disabilities. (u) With the ulterior proceedings, after the sum forfeited has become a debt due to the King, the sessions have no concern, nor can we have any here. The Court of Exchequer issues process to compel payment, through the medium of the sheriff, and therefore, to that court alone belongs the cognizance of all further applications.

§ 8. OF RESTITUTION OF GOODS OBTAINED BY

THEFT OR FRAUD.

The last subject to be touched upon is appertaining, though somewhat remotely, to the conclusion of the justices' authority in sessions,—that of restitution of goods

(t) 22 and 23 Car. 2. c. 22.

(u) 4 and 5 Wm. and Ma. c. 24. and 3 Geo. 1. c. 15.

stolen, or unlawfully obtained, to the right owner, after the conviction of the offenders.

The person from whom goods were stolen, had formerly three methods whereby to procure restitution: 1st. By appeal of robbery; 2dly. By a statute 21 Hen. 8. c. 11. which introduced a new law, in the words following:

"If any felon do rob, or take away any money, goods, or chattels from the King's subjects, from their persons or otherwise, within this realm, and thereof be indicted and arraigned, or found guilty, or otherwise attainted, by reason of evidence given by the party robbed, or owner of the money or goods, or by any other by their procurement: then the party robbed, or owner of the money or goods, shall be restored to such his money or goods; and as well the justices of gaol delivery as other justices before whom the felon shall be found guilty or otherwise attainted, may award a writ of restitution, in like manner as if the felon were attainted on appeal."

3dly. By common law. (v) But there does not appear to have been any writ of restitution awarded for above two hundred years past; for it is now usual for the Court, upon the conviction of a felon, to order (without any writ) immediate restitution of such goods as are brought into court, to be made to the several prosecutors. (w) Indeed, without any writ of restitution, or even order, the party may retake his goods wherever he happens to find them, so as it be not in a riotous manner, or attended with a breach of the peace, because he hath pursued the law upon the felon, and may have his writ of restitution upon demand.

Besides, the owner may have this only opportunity of doing himself justice; for his goods might be afterwards conveyed away or destroyed, if he had no speedier remedy than the ordinary process of the law: if therefore, he can so contrive it as to gain possession of property again, without force or terror, the law favours, and will justify his proceeding. (x)

Likewise, if the felon be convicted and pardoned, or be allowed his clergy, the party may bring his action of trover for the goods, and recover a satisfaction in damages; but that is a consideration beside our purpose here.

If it shall appear to the Court that the party hath been guilty of a gross neglect in prosecuting, it seems that, in

v) 1 Hale, 538. (x) 3 Bla. Com. 4.

(w) Loft, R. 88; 4 Bla. Com. 363.

such case, he shall not be entitled to restitution by any authority of the Court. (y)

At common law, where goods had been obtained from another by mere fraud, the Court had no power to award restitution of the offender, as in cases of felony.(z) But now by statute 7 and 8 Geo. 4. c. 29. s. 57. “to encourage the prosecution of offenders," it is enacted, "That if any person, guilty of any such felony or misdemeanor as aforesaid, in stealing, taking, obtaining, or converting, or in knowingly receiving any chattel, money, valuable security, or other property whatever, shall be indicted for any such offence, by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his 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 bonâ fide paid or discharged by some person or body corporate, liable to the payment thereof, or, being a negotiable instrument, shall have been bonâ fide taken or received by transfer, or delivery, by some person or body corporate for a just or 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, the court in such case shall not award or order the restitution of such security." This clause applies to property abstracted by any of the offences punishable under this act; by larceny at common law; stealing all descriptions of property not previously the subjects of larceny, but made punishable by the act, whether as felony or misdemeanor; by false pretences; and to convictions for receiving all kinds of property so protected, whether the thief be known or not, and whether he be or be not amenable to justice. In all these cases, if the property be forthcoming at the trial, the Court will at once order it to be restored; and if not, may, at any time, order a writ of restitution to issue.

The provision of this statute, that restitution shall not be awarded in case of a security bonâ fide paid, or, being transferrable by delivery, transferred, for value without fraud, is in analogy with the decisions as to the rights of

(y) Hawk. b. 2. c. 23.

(z) 2 East, P. C. c. 18.

owners in such cases at common law. It is now quite settled that the party whose negotiable securities have been fraudulently or feloniously abstracted, cannot recover them from any holder who has taken them for value without fraud, and under circumstances presenting no ground of reasonable suspicion. (a)

(a) This was decided as to bank notes, in Lowndes v. Anderson, 13 East, R. 130; and Solomons v. the Bank of England, 13 East, R. 135, n.; as to Exchequer Bills, in Woolley v. Pole, 4 B. and A. 1: and applies also to checques, and all orders for payment of money to the bearer.

APPENDIX.