treason or felony, are as much liable to be forfeited as a bond made to him in his own name, or a lease in possession." Bracton, lib. 3. c. 14. s. 12., is to the same effect; and his expression is, that the person restored after attainder is sicut homo modo genitus. And Lord Holt lays down a similar rule in Britton v. Cole (a); for he there says, "that if an outlaw purchase goods, the property is immediately vested in the king." These authorities establish, not only that the property of the person attainted vests immediately in the crown, but that even a cause of action accruing after the attainder vests without office found; for the authority cited in Theloal, b. 1. c. 15. s. 8., and s. 9., which states, that a person pardoned may have an action upon a cause of action accruing subsequently to the pardon, and not before, shews that the crown is entitled to a chose in action accruing after the attainder, without office found; for if not, the party would have been remitted to those rights of action, in respect of which no inquisition had been taken. But even supposing that an inquest of office was necessary, there is in this case that which is tantamount to it. For here is an admission on the record, and no inquest of office can so effectually find and vest a title in the king as this judicial record. For even in the case of forfeiture of lands, which never vest in the king without office, although held by the offender at the time of the attainder, if it appear in pleadings between third parties, that a forfeiture has accrued to the king, no further step on the part of the crown is necessary; but the Court is bound, ex officio, to award execution for the king; and in 9 Hen. 7. fol. 9. b. it is said, "In divers cases, arising between common per(a) Carth. 442. 1819. BULLOCK against Dodds. sons, 1819. BULLOCK against Dodds. sons, for the advantage of the king, the defendant may plead that the plaintiff is outlawed since the last continuance; whereupon the king shall have judgment upon the outlawry." And the year book 11 Hen. 4. 71. b., M. 12 Hen. 7. 12. a., T. 16 Hen. 7. 12. a., and Plowden 243., Cro. Jac. 216., and Cro. Car. 290. are authorities to the same effect. It follows, therefore, that a chose in action accruing to a party, even after attainder, vests the right of action in the king. Then if so, the attainder in this case was properly pleaded in bar. Co. Litt. 128. b. Gilbert's C. P. 162. Hage v. Skinner (a), Peele v. Evans (b), Clerke v. Scroggs (c), Bull v. Tilt (d), Brown's Vade Mecum, 282. Pollock contrà. If the subject-matter in respect of which this action is brought be actually forfeited, it must be admitted that the plea of attainder is well pleaded in bar; but if, on the other hand, it be only liable to forfeiture, and not actually forfeited, the plea should have been in abatement only. It appears indeed from the earlier writers, Bracton, b. 3. c. 13., Glanville, b. 14. s. 3., Fleta, c. 58., and the Mirror, c. 4. s. 4., (which were all written prior to the statute of 17 Edw. 2.,) that the doctrine of forfeiture was carried much further, and that an outlaw or an attainted person at that period forfeited not merely his goods and chattels, but every possible right and means of acquiring property; but the statute of 17 Edw. 2. c. 16. enumerates several of the rights acruing to the crown in respect of attainder, and expressly enacts, among other things, that the king shall have "omnia catalla" of felons attainted and fugitives; (a) 3 Lev. 29. (b) 1 Lutw. 610. and and since the passing of that statute until Slade's case 44 Eliz. (a) forfeiture by attainder or outlawry has been held to extend only to goods and chattels and debts by obligation; and in many cases debts by simple contract have been expressly held not to be forfeited to the crown. In Brooke's Abr., fol. 137. pl. 19. (b), title Chose in Action, it is said to have been adjudged by Candish, Holt, and Hanimer, that if A. be outlawed, and J. S. be indebted to him upon bond, and the debt be found by office, the king shall have it, although it be a chose in action; but by Holt and Hanimer, if it be a debt only by simple contract, and not by specialty, the king shall not have it; and for this the 50 Ass. pl. 1. is cited, and the reason given is, that it would deprive the debtor of his wager of law, since no man can wage his law against the king. The same case is cited under the title Forfeiture de Terre, pl. 47. And under the title Dette, fo. 221. pl. 47., this case is put, that if a man be attainted of felony, and I. N. be indebted to him upon specialty, the king shall have this; otherwise, if he was indebted without specialty, and for this is cited 49 Ed. 3. pl. 5., and the same reason is again given. So in title Forfeiture de Terre, fol. 342. pl. 26., it is said, that property of goods forfeited by outlawry or treason vests in the king immediately, for which is cited 39 H. 6. pl. 26.; and in pl. 58. it is said to have been adjudged per Choke Justice, that where A. is bound to two by obligation, and one of the two is a felo de se, that the obligation is forfeited to the king after office found (c); and in pl. 74. the cases from the 49 Ed. 3. pl. 5. and 50 Ass. pl. 1. are cited again; and in pl. 107. it is laid down, that an outlaw shall forfeit a chose in action as a debt by specialty; otherwise of a debt by contract, (a) 4 Rep. 93. (6) Ed. 1576. (c) 8 E. 4. 4. or 1819. BULLOCK against Dodds. 1819. BULLOCK against Dodds. 4 or damages in trespass and the like, and the king shall have the action of detinue, and upon obligation in respect of the outlaw, for which are cited 4 H. 7. pl. 17., 49 Edw. 3. pl. 5., and 16 Edw. 4. pl. 4.; and in pl. 120. it is laid down, that a guardian in socage shall not forfeit the corn upon the land of the heir by his attainder; and so in title" Office devant Escheator," pl. 45. after stating cases where the king is entitled without office, then follows," eadem lex videtur des biens mouvables." In Dyer, 262., it was the opinion of the two justices that a simple contract debt of a felo de se should not be forfeited; and in Wolley v. Bradwell, T. 39 Eliz. (a), it was held, that simple contract debts were not forfeited by outlawry; and Shaw v. Cutteris. (b) M. 43 and 44 Eliz. is to the same effect. Reeves's Hist. of the English Law, vol. ii. pp. 21. 24., and vol. iii. p. 140., shews, that this was then considered as law; and in Markham v. Pitt's case (c), T. 30 Eliz., it was holden, that outlawry was not a good plea in debt upon a contract, trespass, battery, or imprisonment; for such things the king shall not have by outlawry; and although outlawry was said to be a good plea in bar to assumpsit on a quantum meruit, in Webb v. Moore (d), 2 & 3 Will. and Mary, 9., yet it does not appear that any judgment was afterwards pronounced upon that case. The first case, therefore, where it was held that debts by simple contract were forfeited to the king by outlawry, was Slade's case (e), and that is at variance with all the other cases which are recognised in Rolle's and Brookes' abridgments. The weight of authority, therefore, greatly preponderates in favour of the proposition, that a simple contract debt does not vest in the crown by attainder or outlawry; (a) Cro. Eliz. 575. (b) Cro. Eliz. 851. (c) 3 Leon. 205. for for there is no distinction in this respect between outlawry in civil actions and attainder in criminal proceedings. And if a simple contract would not vest in the crown at all it becomes unnecessary to argue that it will not vest before office found. Manning in reply referred to Staunford, Prerogative, fol. 45., where it is laid down that under the word catalla is comprised a right of action to goods as where goods be taken away wrongfully from the felon or where one is indebted to the felon by obligation, or is accountable to the felon for any receipts or otherwise. Cur, adv. vult. ABBOTT C. J. in the course of this term delivered the judgment of the Court. This was an action brought by the plaintiff, as indorsee, against the defendant, as payee of a bill of exchange, bearing date the 10th July, 1809. The defendant pleaded (inter alia) that at an Old Bailey sessions, holden on the 16th September, 1807, the plaintiff was convicted of felony, and received judgment of death; and the plea proceeded further to state, that his majesty having been pleased to extend his royal mercy to the plaintiff, on condition of his being transported to New South Wales for life, and such pleasure having been signified to the Court by one of the secretaries of state, it was further considered, that the plaintiff should be transported to New South Wales for life, according to the statute. It is difficult to understand why this was added to the plea, the attainder being the only thing material for the defendant. To this plea the plaintiff replied, that before the cause of action accrued, he was in due manner transported to New South Wales, in execution of the judgment. To this replication the VOL. II. defend T 1819. BULLOCK against DODDS, |