[man had at the time of conviction were forfeited. Therefore a traitor or felon might bonâ fide sell any of his chattels (real or personal), for the sustenance of himself and family between the fact and conviction (c); for personal property is of so fluctuating a nature, that it passes through many hands in a short time; and no buyer could have been safe if he had been held liable to return the goods which he had fairly bought, provided any of the prior vendors had committed a treason or felony. Yet if they were collusively and not bonâ fide parted with, but merely to defraud the Crown, the law, and particularly the statute 13 Eliz. c. 5, was strong enough to reach them; for they were all the while truly and substantially the goods of the offender.]

The doctrines relating to forfeiture for crime, of which some account has been thus presented to the reader, are still deserving of attention; but their practical importance is now greatly lessened, by the sweeping change which was introduced in the year 1870, by the 33 & 34 Vict. c. 23, to which we have already in other parts of this work found occasion to make frequent reference. It will be remembered that by that Act it is provided that thenceforth no confession, verdict, inquest, conviction or judgment of or for any treason or felony or felo de se shall cause any attainder or corruption of blood, or any forfeiture or escheat (d). But, instead of these consequences, the Act proceeds to provide that a conviction for treason or felony, followed by a sentence of death or penal servitude or any term of imprisonment with hard labour exceeding twelve months, shall disqualify the person convicted, to hold or retain any military, naval or civil office under the Crown, or other public employment, or any ecclesiastical benefice, or any place, office or emolument in any university or other corporation, or to retain any pension or superannuation

(c) Hawk. P. C. b. 2, c. 49, s. 33.

(d) 33 & 34 Vict. c. 23, s. 1.

allowance, unless he shall receive a free pardon from her Majesty within two months after conviction (e). And the same statute further provides that the property of the convict may be committed to the custody and management of administrators, to be appointed by the Crown; or (in default of such appointment) to the management of interim curators, who may be appointed by the justices of the peace, on an application made in the interest of the convict or his family; and that such administrators or curators are to pay his debts and liabilities, and support his family; and shall preserve the residue of his property for the convict himself or his representatives, on the completion of his punishment, his pardon or his death (ƒ). It is however to be noted, that the above Act expressly excludes from its operation the law of forfeiture consequent upon outlawry; and therefore the previous consequences of a judgment of outlawry' on a charge of felony (as above explained), would seem to be still in force (g).

(e) 33 & 34 Vict. c. 23, s. 2. The convicted felon is also made incapable of being elected or sitting or voting as a member of either House of Parliament, or of exer

cising any right of suffrage or other parliamentary or municipal franchise. (Ibid.)

(f) Sects. 9, 18.

(g) Sect. 1. Vide sup. p. 454.

CHAPTER XXIV.

OF REVERSAL OF JUDGMENT.

WE are next to consider how judgments may be set aside (a). There are two ways of doing this; either by falsifying or reversing the judgment, or else by reprieve or pardon.

[A judgment may be falsified, reversed, or avoided, in the first place, without a writ of error; for matters foreign to or dehors the record, that is, not apparent upon the face of it, so that they cannot be assigned for error in the superior court, which can only judge from what appears in the record itself. For example, where a commission issues to A. and B. and twelve others, or any two of them, of which A. or B. shall be one, to take and try indictments, and any of the other twelve proceed without the interposition or presence of either A. or B.; in this case all proceedings, trials, convictions and judgments against any person are void for want of a proper authority in the commissioners, and may be falsified in any other cause or court upon bare inspection, without the trouble of a writ of error (b),—it being a high misdemeanor in the judges so proceeding, and little, (if anything,) short of murder in them all, in case any person on such a judgment be executed and suffer death.]

Secondly, a judgment may be reversed by writ of error; which lies from all inferior criminal jurisdictions to the

(a) Vide sup. p. 344.

(b) Hawk. P. C. b. 3, c. 50, ss. 2, 3.

Queen's Bench (d); and may be brought for notorious and substantial mistakes in the judgment or other parts of the record; as, by way of example, if a man found guilty of the misdemeanor of perjury should be adjudged a felon (e). But for merely formal defects, no writ of error can now be brought; it being provided (as we have seen), that all such shall be either immaterial, or, when still ground for objection, shall at least be brought forward by demurrer or motion to quash the indictment (ƒ). It is also to be observed, that a writ of error is never allowed, even in case of a mere misdemeanor, as of course; but only on sufficient probable cause shown to the attorney-general (g): and then it is understood to be grantable of common right, and ex debito justitiæ (h). And by 8 & 9 Vict. c. 68-amended by 9 & 10 Vict. c. 24, and 16 & 17 Vict. c. 32,-where judgment shall have been given against a defendant indicted for a misdemeanor, and he shall have obtained a writ of error to reverse it, execution thereon shall be stayed, and the defendant discharged from imprisonment until such writ of error shall be finally determined; but this is subject to a proviso, that no execution shall be stayed, nor discharge take place, until the defendant shall be bound by recognizance, (with two sufficient sureties,) to prosecute the writ of error with effect, and personally to appear in court on the day on which judgment thereon shall be given; and, in case the judgment be affirmed, forthwith to render himself to prison according to the judgment (i). As for writs of error to reverse judgment in

(d) If the sentence appears to be erroneous, but the indictment valid, the prisoner must be discharged. (R. v. Bourne, 7 A. & E. 58.) As to writs of error sued out for the purpose of compromising a prosecution, see Alleyne's case, 1 Dearsley's C. C. R. 505; 4 Ell. & Bl. 186. (e) 4 Bl. Com. p. 391.

(f) Vide sup. p. 399.

(g) See Ex parte Lees, 1 Ell. Bl. & Ell. 828.

(h) See Ex parte Newton, 4 Ell. & Bl. 869; 16 C. B. 97.

(i) As to the recognizance required in error, see Dugdale v. The Queen, 1 Dearsley's C. C. R. 254.

elonies, they are only allowed er gratiâ, and not without express warrant under the sign manual, or at least by the consent of the attorney-general (k).

When the judgment is reversed upon a writ of error in any criminal case, the statute 11 & 12 Vict. c. 78, provides that it shall be competent to the court of error either to pronounce the proper judgment itself, or to remit the record to the court below, in order that that court may pronounce the proper judgment (1). And if the judgment be affirmed, or the writ quashed, then by 16 & 17 Vict. c. 32, s. 4, the court may forthwith commit the plaintiff in error to prison, if then present in court: or if he be not present, then by sect. 5 of the same Act, on its being made to appear to a judge that the recognizances have been estreated, and that default has been made for the space of four days in rendering him to prison,—such judge may issue his warrant for his apprehension.

[The effect of falsifying or reversing an outlawry is, that the party shall be in the same plight as if he had appeared upon the capias; and if it be before plea pleaded, he shall be put to plead to the indictment: if after conviction, he shall receive the sentence of the law; for all the other proceedings, except only the process of outlawry for his nonappearance, remain good and effectual as before. But when judgment pronounced upon conviction is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused. But he still remains liable to another prosecution for the same offence; for the first being erroneous, he never was in jeopardy thereby.]

(k) See 1 Vern. 170, 175. See a modern instance of a writ of error after a judgment in a case of murder. Mansell. The Queen, 8 Ell. & Bl. 54.

() As to the construction of this statute, see per Lord Campbell, in the case of Holloway v. The Queen, 17 Q. B. 327.

VOL. IV.

H H