and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this Act punishable; and every accessory after the fact to any felony punishable under this Act (n) shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement; (0) and whosoever shall counsel, aid, or abet the commission of any indictable misdemeanor punishable under this Act shall be liable to be proceeded against, indicted, and punished, as a principal offender.' (p) Sentence when Person in Prison for another Crime. By the 7 & 8 George 4, c. 28, s. 10, 'wherever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced; and where such person shall be already under sentence, either of imprisonment or of transportation, (q) the court, if empowered to pass sentence of transportation, (q) may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment or transportation (q) to which such person shall have been previously sentenced, although the aggregate term of imprisonment or transportation (q) respectively may exceed the term for which either of those punishments could be otherwise awarded.' Where a person is charged with several offences at the same time of the same kind he may be sentenced to several terms of imprisonment or penal servitude one after the conclusion of the other. (r) So where an indictment for perjury contained two counts charging perjury on two different occasions but with the same object, it was held that they were distinct offences which might however be included in one indictment; that a general verdict of Guilty was good, and that the full punishment of seven years penal servitude might be inflicted for each offence, the second term to begin at the termination of the first. (s) Binding over to come up for Judgment when called upon. By the Probation of First Offenders Act, 1887 (50 & 51 Vict. c. 25) Sec. 1. (1) In any case in which a person is convicted of larceny or false pretences, or any other offence punishable with not more than two years imprisonment before any court, and no previous conviction is proved against him, if it appears to the court before whom he is so convicted that regard being had to the youth, character, and antecedents of the offender, to the trivial nature of the offence, and (n) Accessories after the fact to murder and the receivers of stolen goods are excepted. (0) The Offences Against the Person Act and Coin Act omit solitary confinement. (p) This clause is omitted in the Coin Act, but the 24 & 25 Vict. c. 94, s. 8, supplies the omission. (9) Penal servitude now; see the 20 & 21 Vict. c. 3, s. 6, ante, p. 74. (r) R. v. Williams, 1 Leach, 536. See Gregory v. R., 15 Q. B. 974; 19 L. J., Q. B. 366. (s) R. v. Castro, 6 Ap. Cas. 229, in which the House of Lords entirely declined to follow the American case of Tweed v. Liscomb, where the contrary was decided in the State of New York, 15 Sickel's, N. Y. C. A. 559. to any extenuating circumstances under which the offence was committed, it is expedient that the offender be released on his entering into a recognizance with or without sureties, and, during such period as the court may direct, to appear and receive judgment when called upon, and in the mean time to keep the peace and be of good behaviour, (2) The court may, if it thinks fit, direct that the offender shall pay the costs of the prosecution, or some portion of the same, within such period and by such instalments as may be directed by the court. Sec. 2. (1) If a court having power to deal with the offender in respect of his original offence, or any court of summary jurisdiction, is satisfied by information on oath that the offender has failed to observe any of the condition of his recognizance, it may issue a warrant for his apprehension. (2) An offender when apprehended on any such warrant shall if not brought forthwith before the court having power to sentence him be brought before a court of summary jurisdiction, and that court may either remand him by warrant until the time at which he was required by his recognizance to appear for judgment, or until the sitting of the court having power to deal with his original offence, or may admit him to bail with a sufficient surety conditioned on his appearing for judgment. (3) The offender when so remanded may be committed to a prison either for the county or place in or for the county or place where he is bound to appear for judgment, and the warrant of remand shall order that he be brought before the court before which he was bound to appear for judgment, or to answer as to his conduct since his release. Sec. 3. The Court before directing the release of an offender under this Act, shall be satisfied that the offender or his surety has a fixed place of abode or regular occupation in the county or place for which the Court acts, or in which the offender is likely to live during the period named for the observance of the conditions. Sec. 4. In this Act the term Court' includes a court of summary jurisdiction. Restitution. Restitution to the owner of stolen property. As to restitution and recovery of stolen property (t) by the 24 & 25 Vict. c. 96, s. 100, if any person guilty of any such (u) felony or misdemeanor as is mentioned in this Act, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for such offence, by or on the 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 in every case in this section aforesaid the Court before whom (v) any (t) As to power of magistrates to order restitution, see 2 & 3 Vict. c. 71, s. 29; 42 & 43 Vict. c. 49, s. 44; R. v. D'Eyncourt, 21 Q. B. D. 109. (u) This section applies where goods, &c., have been obtained by false pretences; R. v. Stancliffe, 11 Cox, C. C. 318; R. v. Goldsmith, 12 Cox, C. C. 594. (v) The Court of Q. B. has no power to order the writ of restitution; Walker v. London (Mayor of), 11 Cox, C. C. 280, 38 L. J. M. C. 107. person shall be tried for any such felony or misdemeanor 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, that if it shall appear before any award or order made that any valuable security shall have been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or being a negotiable instrument shall have been bona fide taken or received, by transfer or delivery, by some person or body corporate, for a just and 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, extorted, embezzled, converted, or disposed of, in such case the Court shall not award or order the restitution of such security; provided also, that nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent, intrusted with the possession of goods or documents of title to goods, for any misdemeanor against this Act.' (w) The law is that upon the conviction of a thief, the prosecutor acquires a new title to his goods; and, therefore, although previous to the conviction they may have been bought by an innocent purchaser in market overt, upon the conviction the prosecutor may sue the innocent purchaser in trover, (x) and this applies where the goods have been obtained by false pretences, as well as where they have been stolen. (y) By 35 & 36 Vict. c. 93, s. 30, if any person is convicted in any court of feloniously taking, or fraudulently obtaining any goods and chattels, and it appear to the court that the same have been pawned with a pawnbroker, the court, on proof of the ownership of the goods and chattels, may, if it thinks fit, order the delivery thereof to the owner, either on payment to the pawnbroker of the amount of the loan or of any part thereof, or without payment thereof or of any part thereof, as to the court, according to the conduct of the owner and the other circumstances of the case, seem just and fitting. Restitution of the proceeds of stolen property. One stole cattle and sold them in open market at Coventry, and was immediately apprehended by the sheriffs of Coventry, and they seized the money, and the thief was hanged at the suit of the owner of the cattle; and by the Court: the party shall have restitution of the money, notwithstanding the words of the 21 H. 8, c. 11, 'the goods stolen,' &c.; and Crooke, J., said that this was usual at Newgate. (2) And where a servant took gold from his master, and changed it into silver, it was held that the master should have restitution of the silver by the 21 H. 8, c. 11. (a) (w) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 57, and 9 Geo. 4, c. 55, s. 50 (I.). It is extended so as to include cases where property has been extorted, embezzled, or disposed of within the meaning of any of the sections of this Act. The last proviso was introduced especially to protect persons who receive goods from factors, &c., under such circumstances that their title to them is valid. See 6 Geo. 4, c. 94, and 5 & 6 Vict. c. 39. It is to be observed, however, that this proviso only excepts prosecutions for misdemeanors from the operation of this section, and leaves all cases of felony within it. The proviso applies to the right to recover as well as to the summary restitution. Chichester v. Hill, 15 Cox, C. C. 258. (x) Lindsay . Cundy, 1 Q. B. D. 348, reversed on a different view of facts, 2 Q. B. D. 96 & 3 Ap. Cas. 459. (y) Bentley v. Vilmont, 12 Ap. Cas. 471. (2) Haris's case, Noy, 128. (a) Hanberries' case, cited in Holiday v. Hicks, Cro. El. 661. Where a prisoner was convicted of stealing a bill of exchange for £100, and a considerable sum of money in specie, and the evidence tended to show that he must have purchased a horse with part of the proceeds of the bill, the Court ordered the horse to be delivered to the prosecutor. (b) It has been held that the Court has jurisdiction under 24 & 25 Vict. c. 96, s. 100 to entertain an application for the restitution of the proceeds of the property as well as the property itself, but such an application ought only to be granted if the proceeds are in the hands of the convict, or of an agent who holds them for him. (c) Restitution after a transfer under the Factors Act. Where a prisoner was indicted for stealing a £10 Bank of England note, it was held that an order could not be made to restore it after it had been paid and cancelled by the Bank. (d) Where the prisoner had been convicted of stealing certain pieces of plush, the property of De Gilley, and it appeared that he had sold the plush to Hart for £1,200, under such circumstances as to enable Hart successfully to defend an action brought by De Gilley, on the ground that he had bona fide dealt with the prisoner as the agent of De Gilley and as having the possession of the plush within the 5 & 6 Vict. c. 39, it was held that the property in the plush revested in De Gilley on the conviction of the prisoner, and an order was made under the 7 & 8 Geo. 4, c. 29, s. 57, to restore it to De Gilley. (e) Mode of proceeding where the prisoner pleads guilty. A prisoner pleaded guilty to several indictments charging him with stealing a large amount of property, and an order was applied for upon several pawnbrokers to deliver up to the prosecutor the goods which had been pledged with them. It was objected for the pawnbrokers that it might be that the property had never belonged to the prosecutor; or, if it had, that the prisoner had been his agent, and had pledged the goods under circumstances that did not amount to felony, and that the prisoner's confession was no evidence against the pawnbrokers. Alderson, B.: 'I certainly think that the pawnbrokers should not be absolutely bound by the prisoner's confession. It ought not to affect them. But, on the other hand, the Act prescribes that where the person robbed has prosecuted the thief to conviction, he shall have an order from the Court that his goods be restored to him. Would not the better course be to bring the goods into court that they may be identified, and that affidavits should be made on both sides of any matters the parties may think it necessary to state? We should then have an opportunity of forming our judgment upon the facts.' It was suggested that the depositions would disclose what the facts were. Alderson, B.: But then even the statement in the depositions would not be conclusive against third persons.' The next day Alderson, B., said: 'We have looked over the depositions, and are satisfied that this is not a case within the Factors Act, that the prisoner was not an agent, and that in making away with the property he was clearly (b) R. v. Powell, 7 C. & P. 640. The Common-Serjeant, after consulting Gurney, B., and Williams, J. See R. v. The City of London, infra. (c) R. v. Central Criminal Court, 17 Q. B. D. 598. See this case on appeal, 18 Q. (d) R. v. Stanton, 7 C. & P. 431. Vaughan and Williams, Js. (e) R. v. Wollez, 8 Cox, C. C. 337, Com. Kerr. guilty of felony. We shall, therefore, make the order for restitution, subject, of course, to the identity of the goods being established.' (ƒ) Judge has power only as regards stolen property and its proceeds. A judge has no power either at common law or by statute to direct the disposal of property in the possession of a convicted felon, not belonging to, or not being the proceeds of property that belonged to, the prosecutor. Where, therefore, an order stated that the prisoner had been convicted of stealing a large quantity of gold, and that certain Turkish bonds were found in his possession, and that one-sixth of these bonds had been bought with money produced by the sale of the property so stolen, and that the other five-sixths were held by a trustee for a woman and her child, and it was ordered that the bonds should be delivered to the prosecutor's solicitor to the use of the prosecutor as to one-sixth, and as to the other five-sixths to be settled on the woman and child, it was held, that the order was bad as to the five-sixths for the judges had no power, either by statute or at common law, to order any disposal of these portions of the property. (g) Stolen goods sold in 'market overt.' The order of restitution is cumulative to the ordinary remedy by action, and is not a condition precedent to such remedy, and the only consequence of the Court refusing an order is, to leave the owner to the ordinary remedy by action; and in such case the owner may maintain trover for the stolen goods after the conviction of the thief; for though the goods have been sold in market overt, the property in them is revested in the owner on conviction of the thief. (h) Where pawnbroker has advanced money on goods. It was held in Ireland, on the 9 Geo. 4, c. 55, s. 50 (similar to the 7 & 8 Geo. 4, c. 29, s. 57), that the prosecutor ought not to be ordered to pay a pawnbroker the money advanced by him on stolen goods which are ordered to be restored to the owner. (i) Restitution when goods have been sold and money found on the prisoner. By 30 & 31 Vict. c. 35, s. 9, where any prisoner shall be convicted, either summarily or otherwise, of larceny or other offence, which includes the stealing of any property, and it shall appear to the Court by the evidence that the prisoner has sold the stolen property to any person, and that such person has had no knowledge that the same was stolen, and that any monies have been taken from the prisoner on his apprehension, it shall be lawful for the Court, on the application of such purchaser, and on the restitution of the stolen. (f) R. v. Macklin, 5 Cox, C. C. 216, Alderson, B., and Martin, B. It was urged that a writ of restitution should be awarded, and then the whole matter might be enquired into. Alderson, B., said, that the only case he could find of such a writ was Burgess. Coney, 1 Trem. Pl. C. 315, and he saw no necessity for it in this case. It seems that the order for restitution will be limited to the property identified at the trial, as being the subject of the indictment. R. v. Goldsmith, 12 Cox, C. C. 594. (g) R. v. The City of London, 1 E. B. & E. 509; 27 L. J. M. C. 231. See R. v. Pierce, 7 Cox, C. C. 206, which is a report of the making of the order in question. (h) Scattergood v. Sylvester, 15 Q. B. 506; R. v. Stancliffe, 11 Cox, C. C. 318, where goods had been pawned to a bona fide pawnee. Walker v. Matthews, 8 Q. B. D. 109. As to the meaning of market overt, |