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SECTION VIII.

OF RESTITUTION OF GOODS OBTAINED BY THEFT OR FRAUD.

Restitution of Goods Stolen or obtained by Misdemeanour.]-The last subject to be touched on appertains to the conclusion of the justices' authority in sessions,-viz. that of restitution of goods stolen or unlawfully obtained to the right owner, after the conviction of the offenders.

The person from whom goods were stolen, had a remedy at common law (a) by writ of restitution; but no such writ has been 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 (b). 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 (c).

If it shall appear to the court that the party hath been guilty of a gross neglect in prosecuting, it seems that, in such case, he shall not be entitled to restitution by any authority of the court (d).

At common law, where goods had been obtained from another by mere fraud, the court had no power to award restitution by the offender, as in cases of felony (e).

By stat. 7 & 8 G. IV. c. 29, s. 57, "to encourage the prosecution of offenders," it is enacted, "That if any person, guilty of any such felony or misdemeanour as aforesaid, in stealing, taking, obtaining, (viz. by false pretences, see sect. 53,) 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

(a) 1 Hale, 538.

(b) Lofft, R. 88; 4 Bla. Com. 363. (c) See also 3 Bla. Com. 4. Other remedies were by appeal of robbery, and under 28 H. VIII. c. 11.

(d) Hawk. B. 2, c. 23.

(e) 2 East, P. C. c. 16, s. 17 ; c. 18, 8. 14; Parker v. Patrick, 5 T. R. 175; R. v. Deveaux and others, 2 Leach, 665.

manner provided always, that if it shall appear before any award or order made, that any valuable security shall have been bond fide paid or discharged by some person or body corporate, liable to the payment thereof, or, being a negociable instrument, shall have been bond 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 misdemeanour 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 misdemeanour ; 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. It has been held that this clause does not empower a court to order a Bank of England note which has been paid and cancelled, to be delivered up to the prosecutor of an indictment for stealing it (ƒ).

It is now quite settled that the party, whose negociable 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 (g).

This provision of 7 & 8 G. IV. c. 29, s. 57, that restitution shall not be awarded in a case of a security bona fide paid, or being transferable by delivery and transferred for value without fraud, is in analogy with the decisions as to the rights of owners in such cases at common law (h).

(f) R. v. Stanton, 7 C. & P. 431. Central Criminal Court.

(g) This was decided as to bank notes, in Lowndes v. Anderson, 13 East, 130; and Solomons v. The Bank of England, 13 East, 135, n.; as to exchequer bills,

in Woolley v. Pole, 4 B. & Ald. 1, and applies also to cheques, and all orders for payment of money to the bearer.

(h) See Lyons v. De Pass, 9 C. & P. 68.

CHAPTER XIV.

OF QUARTER SESSIONS IN BOROUGHS HAVING GRANTS OF SEPARATE COURTS OF QUARTER SESSIONS.

Powers to grant separate Quarter Sessions and appoint a Recorder and Clerk of the Peace in a Borough.]-The council of every borough which shall be desirous that a separate court of quarter sessions of the peace shall be, or continue to be, holden in and for such borough, shall signify the same by petition to his majesty in council, setting forth the grounds of the application, the state of the gaol, and the salary which they are willing to pay to the recorder in that behalf; and it shall be lawful for his majesty, if he shall be pleased, thereupon to grant, that a separate court of quarter sessions of the peace shall be thenceforward holden in and for such borough, to appoint for such borough, or for any two or more of such boroughs conjointly, a fit person, being a barrister at law of not less than five years' standing, who shall be and be called the recorder of such borough or boroughs, and shall hold such office during his good behaviour; and upon any vacancy in any such office to appoint another fit person, being a barrister at law of not less than five years' standing, to be the recorder in the place of the person so making such vacancy: and the council of every such borough shall appoint a fit person to be clerk of the peace during his good behaviour; and the recorder for the time being of any borough shall be a justice of the peace of and for such borough, although he may not have such qualification by estate as is required by law in the case of any other person being a justice of the peace for a county; and such recorder shall have precedence in all places within the borough, of which he may be the recorder, next after the mayor thereof; and in such case it shall be lawful for his majesty to direct that an annual salary, not exceeding the sum stated in the petition of the council, shall be paid to such recorder by the treasurer of such borough out of the borough fund. Provided always, that no person, being such recorder as aforesaid, shall be eligible to serve in parliament for such borough, nor shall he be an alderman, councillor, or police magistrate of such borough. Provided nevertheless, that nothing in this act con

tained shall be construed to disqualify any such recorder from being appointed a barrister to revise any list of voters, under the provisions of 2 W. IV. c. 45, or from being eligible to serve in parliament, otherwise than is herein before provided. Provided also, that in every borough in and for which a separate court of general or quarter sessions of the peace is now holden, and of which the present recorder or deputy recorder is a barrister of five years' standing, such recorder or deputy recorder being qualified as aforesaid, shall be continued or appointed recorder under the provisions of this act (a).

In the case of sickness, or unavoidable absence, the recorder of any borough is empowered, under his hand and seal, to appoint a deputy recorder, being a barrister of five years' standing, to act for him at the quarter sessions of the peace then next ensuing, or then being held, and no longer, or otherwise, provided that such sessions shall not be deemed to have been illegally held, nor the acts of a deputy recorder invalidated, by reason of the cause of the absence of the recorder not being deemed to be "unavoidable" within the meaning of this act (b).

Provided nevertheless, and be it enacted, That no recorder or person, assigned to keep the peace within such borough, shall be capable of acting as recorder or justice of the peace within such borough, until he shall have taken the oaths provided to be taken by justices of the peace (except the oath as to qualification by estate), and until he shall have made before the mayor, or before any two or more of the aldermen or councillors of such borough, who is and are hereby authorized and required to administer the same (a declaration in the following form); that is to say,

I, A. B. do hereby declare that I will faithfully and impartially execute the office of recorder [or, justice of the peace] for the borough of according to the best of my judgment and ability (c).

Time and Manner of Holding Quarter Sessions by Recorders.]And be it enacted, That the recorder of every borough shall hold, once in every quarter of a year (d), or at such other or more frequent times as the said recorder in his discretion may think fit, or as his majesty shall think fit to direct, a court of quarter session of the peace in and for such borough, of which court the recorder of such borough shall sit as the sole judge: and such court of quarter sessions of the peace shall

5 & 6 W. IV. c. 76, s. 103. b) 6 & 7 V. c. 89, s. 8. Sect. 7 alters 5 & 6 W. IV. c. 76, s. 103, by which the consent of the council was requisite to the appointing a deputy

recorder.

(c) 5 & 6 W. IV. c. 76; id. s. 104.
(d) See Farmer v. Mountfort, ante,

p. 141.

be a court of record, and shall have cognizance of all crimes, offences' and matters whatever, cognizable by any court of quarter sessions of the peace for counties in England; and the said recorder shall have power to do all things necessary for exercising such jurisdiction, notwithstanding his being such sole judge, as fully as any such last-mentioned court. Provided nevertheless, that no recorder by virtue of his office shall have power to make or levy any county rate, or rate in the nature of a county rate, or to grant any licence or authority to any person to keep an inn, alehouse, or victualling house, to sell exciseable liquors by retail, or to exercise any of the powers herein specially vested in the council of such borough (e).

It seems that a recorder, quasi two justices of peace in counties, has power to issue a precept to the clerk of the peace, requiring him to issue a precept for holding a quarter sessions, on which the clerk of the peace, quasi sheriff, may then issue his precept to the serjeant at mace or other officer to summon a jury to serve at the quarter sessions.

Dividing Courts of Quarter Sessions in Boroughs.]-Where it appears to the recorder or other person presiding in the court of quarter sessions of a corporate city or town, that the sessions are likely to last more than three days, including the day of assembling, he may order a second court to be formed, and appoint by writing under his hand and seal, but without stamp, a barrister at law of not less than five years' standing, to be styled assistant barrister, to preside and try such felonies and misdemeanours as shall be referred to him therein. But the recorder cannot exercise such power unless on certificate to him by the mayor or two aldermen, before each such session, that the council have resolved that such course will be expedient, nor unless the barrister's name has been transmitted to, and approved by, a principal secretary of state (f). The remuneration of the assistant barrister and his officers is fixed by the act (g).

Adjourning Quarter Sessions in Boroughs.]—In the absence of the recorder, and deputy recorder, the mayor shall be authorized and required, at the times appointed for the holding of such court of quarter sessions of the peace, in and for such borough, to open the said court, and to adjourn over the holding of the same, and to respite all recognizances conditioned for appearing at the same, until such further day

(e) 5 & 6 W. IV. c. 76, s. 105. See also 6 & 7 W. IV.c. 105, s. 8; and Palmer v. Powell, 6 M. & W. 627. A recorder cannot try an appeal against a refusal of a special sessions of the borough justices

to grant an alehouse licence, Reg.v. Deane and others, 2 Q. B. 96.

(f) 7 W. IV. & 1 V. c. 19, s. 1, 3. (9) Id. s. 2.

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