Provisions of former acts extended to all public stores. " 66 66 66 "the passing of that act, not only the said recited act of "the ninth and tenth year of the reign of King William the Third, but also the said several other acts of the ninth year of the reign of King George the First, the seven"teenth year of the reign of King George the Second, and "the fortieth year of the reign of his present Majesty, herein"before recited, so far as the same severally relate to his Majesty's naval, ordnance, and victualling stores therein respectively mentioned, and all the pains, penalties, forfeitures, regu"lations, restrictions, powers, provisions, clauses, matters, and things therein respectively contained, relating to his Majesty's naval, ordnance, and victualling stores therein respectively " mentioned, shall extend or be construed to extend to all public "stores whatsoever, under the care, superintendance, or con"troul of any officer or person in the service of his Majesty, his "heirs or successors, or employed in any public department or "office, either marked with the marks or any of them in the said "recited acts or any of them specified, or with the broad arrow, " and the letters B. O., or with a crown and the broad arrow, or "with his majesty's arms, or with the letters G. R., to denote "the property of his majesty, his heirs or successors, therein, " and to all and every person and persons, not authorized by the "proper officer or officers, person or persons in his majesty's "service, in that behalf so to do, using any such marks or making any goods marked with such marks, or any of them, and to all "and every person and persons in whose custody, possession, or keeping any such public stores so marked as aforesaid shall be "found, or who shall willingly or knowingly receive or have in "his, her, or their custody, possession, or keeping, or who shall "conceal any such public stores so marked as aforesaid, unless "such person or persons shall upon his, her, or their trial, pro"duce a certificate or certificates under the hand or hands of the proper officer or officers, person or persons in his majesty's "service authorized to grant the same, of such and the like "nature as the certificate in the said recited acts of the ninth "and tenth year of the reign of King William the Third, and "fortieth year of the reign of his late majesty mentioned, and to "all and every person and persons who shall wilfully and fraudulently destroy, beat out, take out, cut out, deface, obliterate, or erase, wholly or in part, any of the said marks; or cause, procure, employ, or direct any other person or persons so to "do, for the purpose of concealing the property of his majesty, "his heirs or successors, therein, as fully and effectually to all intents and purposes, as if all the same several pains, penalties, forfeitures, regulations, restrictions, powers, provisions, clauses, "matters, and things in the said several acts contained, so far as "the same severally relate to his majesty's naval, ordnance, and victualling stores, and the punishment of persons offending in "manner therein mentioned, were herein and hereby severally repeated and re-enacted in respect to all other public stores 66 whatsoever." 66 66 66 66 66 s. 2. Upon these statutes the question which generally occurs is, what shall be a receiving or having? By the other statutes of William and Anne and Geo. 2. &c. relating to goods generally, and and those particularly therein described, the words are, “receive "or buy." Therefore to constitute a guilty receiver, it is not necessary that he should be a " purchaser" of the stolen goods; if he receives them from any other unlawful motive, as to conceal them with a view of preventing the detection of the principal felon, he is equally a guilty receiver. But in order to make a man a guilty receiver, there must be some evidence on the part of the prosecution, positive or inferential, from which the jury may collect the receipt was malo animo. But with respect to public stores the case is different; the onus probandi is thrown upon the defendant; for the king's stores all having a known visible mark, which no one else is permitted to use, the bare fact of possessing them calls upon the possessor to give evidence of his having a legal right of possession; which strictly ought to be done as is directed by the acts, if a purchaser or subpurchaser, by shewing the certificates. But even in a case where the purchaser could not shew, by the evidence required by the acts, a legal right of possession, a defendant has been admitted to rebut the fact of guilty possession by other evidence. A widow woman was indicted before Mr. J. Foster, on the stat. 9 and 10 W. 3. for having in her custody divers pieces of canvass having the king's mark, she not being a person employed by the commissioners of the navy to make the same for the king's use. The fact of her possession was clearly proved; and she rested her defence upon proof of the following facts: That it was common for the commissioners of the navy to sell old canvass, when unfit for use, in lots, some larger, some smaller; that the canvass had, during her husband's life-time, been in public use in the family, as sheeting and table linen, without concealment, and that she came to it as part of her late husband's property; but she produced no certificate as is required by the act. This evidence was opposed by the counsel for the crown, on the ground, that by the second section of the act no other exculpatory evidence than the production of the commissioners' certificate, if it had been really bought of them, could be a legal defence. The learned judge, however, thought it would be a harsh construction of the law to exclude all other evidence of innocence, and consider a person as guilty who had perhaps neglected to take, or had lost a certificate. At all events, as the canvass came to the woman by act of law, and not by any act of her own, he thought it fit evidence to be left to the jury, directing them, that if they thought the defendant came to the possession without any fraud on her part, they should acquit her-which they did. Taking a Reward to restore Stolen Goods. + Sect. 1. (1) By 4 Geo. 2. c. 1. s. 4. IT IS RECITED, "That Persons taking there are several persons who have secret acquaintance with felons, rewards for (1) This statute originated in the practices of the notorious Jonathan Wild, who had established himself as a broker between thieves and the party whose goods had been stolen; the thieves regularly bringing their plunder to Wild, and the party robbed as regularly applying to him, and negociating the terms upon which the property was to be and helping to stolen and who make it their business to help persons to their stolen goods guilty of goods, and by that means gain money from them, which is divided felony. between them and the felons, whereby they greatly encourage such offenders:" and therefore ENACTED, "That wherever any "person taketh money or reward, directly or indirectly, under "pretence or upon account of helping any person or persons to "any stolen goods or chattels, every such person so taking money "or reward as aforesaid, (unless such person doth apprehend, or "cause to be apprehended, such felon who stole the same, and cause such felon to be brought to his trial for the same, and give evidence against him,) shall be guilty of felony, and suffer "the pains and penalties of felony, according to the nature of the "felony committed in stealing such goods, and in such and the same manner as if such offender had himself stole such goods and chattels, in the manner, and with such circumstances as the 66 same were stolen." Prosecuting to conviction any person for taking a reward for helping to stolen goods, shall be entitled to 401. 4 Geo. 1. c. 11. sect. 4. 66 66 + Sect. 2. By 6 Geo. 1. c. 23. s. 9. IT IS RECITED, "That the practice of taking money to help persons to their stolen goods, and sharing it with the felons, is still continued in defiance of the laws, and to the encouragement of felons:" and therefore ENACTED, "That whoever shall discover, apprehend and prosecute to conviction of felony without benefit of clergy, any person or persons for the said offence of taking money or other reward, directly or indirectly, to help any person or persons to their "stolen goods, (such offender not having apprehended the felon "who stole the same, and brought him or her to trial, for the same, and given evidence against him or her as required by law,) shall be entitled to a reward of forty pounds for every such "offender so convicted as aforesaid, and shall have the like certificate and like payments made without fee or reward as any "person or persons may be intitled unto for the apprehending, "prosecuting and convicting of highwaymen by any law or laws "for that purpose." (2) In the case of Rex v. Drinkwater, Old Bailey Sessions, Oct. 1740, it was doubted, the principal felon being dead, and not having been convicted of the offence, whether the person receiving the reward to help to the stolen goods could be convicted. The report of the case (in 1 Leach, C. C. L. 21, 22.) states that the court thought the objection of great importance, and that, though the opinion of the judges was never publicly stated, the prisoner, after being some time in gaol, was discharged. From this it should seem the judges thought the objection well founded. But Mr. East justly observes that the very terms of the statute itself preclude the supposition of the conviction of the principal being a necessary preliminary to the trial and punishment of the offender under this statute, for it states, that the offender, " unless he doth apprehend, or cause to be apprehended, the felon who stole the goods, and cause such felon to be brought to trial for the same, box of lace in the shop of Catharine Statham; but it appearing from the testimony of H. Kelly, the prin cipal felon, who had actually stolen the lace and was admitted king's evidence, that Wild was not in the shop at the time, but waited at the corner of the street to receive the goods, he was acquitted and on this indictment: but was immediately tried and and give evidence against him, shall be guilty of felony." He therefore presumes that the true ground of the doubt in that case was, "because by the death of the principal the stipulated condition had become impossible to be performed, without any default in the defendant." (2 East, P. Č. 771.) In prosecutions on this statute, it seems proper to aver that the defendant had not apprehended or caused to be apprehended the principal, &c. such reservation being in the enacting clause, and part of the description of the offence. (Idem.) Advertising a Reward for the Restoration of Stolen Goods. for return of By 25 Geo. 2. c. 36. IT IS RECITED, "That the advertising Person advera reward with no questions asked, for the return of things which tising a reward have been lost or stolen, is one great cause and encouragement things stolen or of thefts and robberies;" and therefore ENACTED, 66 That any lost, &c. "person publicly advertising a reward with no questions asked, "for the return of things which have been stolen or lost, or making "use of any words in such public advertisement, purporting that "such reward shall be given or paid without seizing or making "enquiry after the person producing such thing so stolen or lost, or promising or offering, in any such public advertisement, to "return to any pawnbroker, or other person, who may have bought "or advanced money by way of loan upon such thing so stolen or "lost the money so paid or advanced, or any other sum of money "or reward for the return of such thing, and any person printing " or publishing such advertisement, shall respectively forfeit the and the printer "sum of fifty pounds for every such offence to any person who to forfeit 501. "will sue for the same." 46 66 Restitution of Stolen Goods. Be it enacted, " that if any felon or felons hereafter do rob or "take away any money, goods, or chattels from any of the king's subjects, from their person or otherwise, within this realm, and "thereof the said felon or felons be indicted and after arraigned " of the same felony and found guilty thereof, or otherwise attainted, by reason of evidence given by the party so robbed, or "owner of the said money, goods, or chattels, or by any other by "their procurement, that then the party so robbed or owner shall "be restored to his said money, goods, and chattels; and that as "well the justices of gaol delivery as other justices afore whom any such felon or felons shall be found guilty, or otherwise attainted, by reason of evidence given by the party so robbed or owner, or by any other by their procurement, have power by "this present act to award from time to time writs of restitution for the said money, goods, and chattels, in like manner as though any such felon or felons were attainted at the suit of the party in appeal." 21 H. 8. c. 11. 66 66 The writ of restitution is now disused, and it is the practice for the court to order restitution to the prosecutor of all the goods produced in court at the trial; and the owner may maintain trover for any not restored, notwithstanding even a sale of them in market overt. The restitution, however, can only be had Cas. Temp. Hardw. 349. 4 Black. Com. 363. Kel. 38. had from the person who is in possession at the time of the attainder, and therefore if a person has bona fide purchased 1 Hale, 543. 6. stolen goods in market overt, and has sold them again before conviction, no action will lie against him for them even though notice was given him not to sell. So where the thief has sold the goods stolen, and the money clearly the produce of them is Smith, 2 T. R. found in his possession, it has been usual to order the restitution of the money, as being within the equity of the statute giving restitution. (Hanberrie's Case, Cro. Eliz. 661.) 2 In. 714. Horwood v. 750. But the statute only extends to goods stolen, and not to a restitution of goods obtained by fraud, upon conviction of the of fender in the latter case. (Parker v. Patrick, 5 T. R. 175.) 66 See further upon this subject, Bk. 2. c. 23. Restitution of Stolen Horses. In cases of horses being stolen, a special provision is made for their restitution by stat. 31 Eliz. c. 12. which, for preventing horse-stealing, requires certain entries to be made, &c. in the toller's books of the sales of horses in markets and fairs, and by s. 4. provides" That if any horse, mare, gelding, colt, or filly, "shall be stolen, and after shall be sold in open fair or market, " and the same sale shall be used in all points and circumstances as aforesaid, that yet nevertheless the sale of any such horse, "&c. within six months next after the felony done, shall not take away the property of the owner from whom the same was "stolen, so as claim be made within six months by the party "from whom the same was stolen, or by his executors or admi"nistrators, or by any other of their appointment, at or in the "town or parish where the same horse, &c. shall be found, "before the mayor or other head officer of the same town or parish, if the same horse, &c. shall happen to be found in any "town corporate or market town, or else before any justice of peace of that county near to the place where such horse, &c. "shall be found, if it be out of a town corporate or market town; and so as proof be made within forty days then next "ensuing by two sufficient witnesses, to be produced and deposed before such head officer or justice, (who by virtue of this "act shall have authority to minister an oath in that behalf,) that "the property of the same horse, &c. so claimed, was in the party by or from whom such claim is made, and was stolen " from him within six months next before such claim of any such "horse, &c. but that the party from whom the said horse, &c. 66 66 was stolen, his executors or administrators, shall and may at "all times after, notwithstanding any such sale or sales in any "fair or open market thereof made, have property and power to "have, take again, and enjoy the said horse, &c. upon payment or readiness, or offer to pay, to the party that, shall have the "possession and interest of the same horse, mare, gelding, colt, or filly, if he will receive and accept it, so much money as the same party shall depose and swear before such head officer or "justice of peace, (who by virtue of this act shall have authority to minister and give an oath in that behalf,) that he paid for the 66 66 66 same |