Sometimes a poor person is allowed to prosecute in forma pauperis, but then, in addition to the petition and affidavit, there must be special grounds shown for allowing this ir regularity.()

View of locus in quo by the jury.—The judge may allow the jury to view the scene of the crime, or other occurrence under investigation, at any time during the trial, even after the summing up. But care should be taken that no improper communications are made at the view; and that no evidence is received in the absence of the judge and the prisoner.(k)

Adjournment of the trial.-If the trial is not concluded on the same day on which it is commenced, the judge may adjourn from day to day.() And a judge may adjourn a case and proceed with another if the emergency requires it, as, for example, to give time for the production of something essential to the proof, or for the witnesses to arrive.(m) If the prisoner is taken so ill as to render him incapable of remaining at the bar, the jury is discharged, and the prisoner is afterward tried by another jury.(n)

Withdrawal from prosecution.-Frequently the prosecutor is desirous of withdrawing from the prosecution, the accused engaging not to bring an action for trespass and false imprisonment or malicious prosecution. If the offense is a misdemeanor more immediately affecting the individual, e. g., a battery, or, in other words, one which might be made the subject of civil action, this will be allowed, and the agreement will be enforced; but not if the offense is a felony or a misdemeanor of a more public nature.(0) Even after verdict, if the court deems such a course proper, the defendant is sometimes allowed to "talk with the prosecutor." Though one person is not obliged in the first in

(¿) Arch. 151. R. v. Wilkins, 1 Dowl. P. C. 536.

(k) R. v. Martin, L. R., 1 C. C. R. 378; 41 L. J. (M. C.) 113.
(1) As to what happens to the jury in the interval, v. p. 327.

(m) R. v. Wenborn, 6 Jur. 267.

(n) R. v. Stevenson, 2 Leach, 546.

(o) v. Rawlings v. Coal Consumers' Association, 43 L. J. (M. C.) 111

stance to prosecute another whom he suspects of crime, that is, not until he has been bound over by the magistrate to prosecute and give evidence, it is a crime to take a reward not to prosecute a felony.(p)

[In Iowa, when a defendant is prosecuted in a criminal action for a misdemeanor, for which the person injured by the act constituting the offense has a remedy by civil action, the offense may be compromised, except when it is committed by or upon an officer while in the execution of the duties of his office; or riotously; or with intent to commit a felony. The party injured must acknowledge in writing, in court, before trial, that he has received satisfaction. Thereupon, on payment of costs, the court may, in its discretion, discharge the defendant, which discharge is final, and a bar to another prosecution for the same offense.(1)]

Restitution of goods.-When a man's goods have been stolen, he may, if he can do so without a breach of the peace, retake them wherever he finds them,(q) as the goods are still his, unless they have been sold and bought in market overt, by which sale a bona fide purchaser acquires the property in the goods. In that case the original owner is entitled to have his goods back only after he has prosecuted the thief to conviction; and that only in consequence of the provisions of the Larceny Consolidation Act.

If any person guilty of any such felony or misdemeanor as is mentioned in that act, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving, any chattel, money, valuable security or other property, is indicted for such offense by or on behalf of the owner of the property, or his executors, or administrators, and convicted thereof; in such case the property is to be restored to the owner or his representative. The court may order the restitution in a summary manner. But no such restitution is made if it appears that any valuable security has been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or, being a negotiable instrument, has been bona fide taken or received by transfer or delivery, (g) 4 Bl. 363.

(p) v. compounding felony, p. 85. (1) Rev. Stat. (1873), p. 721.

by some person or body corporate, for a just and valuable consideration, without any notice or reasonable cause to suspect that the same had, by any felony or misdemeanor, been stolen, etc. But the above provisions as to restitution do not apply to the case of any prosecution of any trustee, banker, merchant, solicitor, factor, broker, or other agent intrusted with the possession of goods or documents of title to goods, for any misdemeanor against the Larceny Act.(r) But the court has not power, as a rule, to order property not forming part of the subject of the indictment, for example, property found on the prisoner, to be disposed of in a particular manner.(s)

The effect of this statute is to revest the property in the goods in the original owner from the time of the conviction, so that he may bring an action to recover his goods against any one who had possession of them after the conviction, (f) but not against a person who, having bought them in market overt, parted with them before such conviction.() Or the owner may obtain a summary order for restitution under the statute.

Now, as we have seen that there is a distinction, in the case of goods which have been stolen and afterwards sold, between a sale in market overt and a sale otherwise, on which depends the right to recover by the aid of the statute only, or without it; so similarly with regard to goods which have been obtained from the owner by false pretenses, different considerations apply according as the property has or has not passed from the original owner.

Thus, for example, when A. is induced by fraud to part with his goods to B., under the belief that he is selling the goods to some person whom B. pretends to be, or to be the agent of, the contract is void, and the property in the goods has never passed from A., and he is therefore entitled, apart from the statute, to recover his goods, or sue for the conversion of them.(x) But when A. has been in

(r) 24 and 25 Vict., c. 96, s 100,

(s) R. v. Corporation of London, 27 L. J. (M. C.) 231. But an ex ception is introduced by statutę 30 and 31 Vict., c. 35, s. 9. (1) Scattergood v. Sylvester, 15 Q. B. 506.

(u) Horwood v. Smith, 2 T. R. 750.

(x) Hardman v. Booth, 1 H. & C. 803; 32 L. J. (Ex.) 105; Lindsay v.

duced by fraud to sell or part with his goods to B., intending to pass the property to him, the contract is not void, but voidable; i. e., A. may repudiate the contract on discovering the fraud, and may recover the goods from B., or from a purchaser who had notice of the fraud. But if B. has sold the goods to C., an innocent purchaser, A. can not ecover the goods from C., because the property in the goods passed to him while B. had the property, and so C. has acquired a good title, unless the statute gives A. the right to recover.

The words of the statute seem to have that effect, and were so considered by Blackburn, J., in Lindsay v. Cundy. (y) And it is difficult to see any reason why a person who has bought in market overt bona fide, but from a thief, should be in a worse position than one who has simply purchased from one who has obtained the goods by fraud. However, it has been decided, in the recent case of Moyce v. Newington, (2) that the statute does not apply to cases of false pretenses where the property has passed, but only to those cases where possession has been obtained without the property passing, cases in which, as we have seen, the statute is unnecessary, except for the purpose of giving a summary mode of obtaining restitution.

The innocent purchaser is not, however, always a total loser; for it is provided that money found on a prisoner, who has been convicted of an offense which includes the stealing of any property, may be ordered by the court to be given to the purchaser of the property, if he did not know that the same was stolen. This takes place only after he has restored the property to the owner; and of course the amount so given must not exceed the amount of the proceeds of the sale. (a) If the property has been pawned, the court may 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 of any part, as the court, according to the conduct of the owner and the other circumstances of the case, thinks just and fitting. (b)

Restitution may be ordered in the same way by magistrates convicting of larceny, etc., in the exercise of their summary jurisdiction. (c)

Cundy. L. R. 1 Q. B. D. 348; 45 L. J. (Q. B.) 381; L. R. 2 Q. B. D. 96; 46 L. J. (Q. B.) 233; L. R. 3, Appeal Cases, 459; 47 L. J. (H. L.) 481. (y) L. R. 1 Q. B. D. 357.

(2) L. R. 4 Q. B. D. 32; 48 L. J. (Q. B.) 125.

(a) 30 and 31 Vict., c. 35, s. 9.

(b) 35 and 36 Vict., c. 93, s. 30.

(c) 42 and 43 Vict., c. 49, s. 27. subs. 3.

CHAPTER XXI.

PUNISHMENT.

THE object of the sentence is to prescribe the punishment. The law, whether common law or statute law, which assigns the punishment, almost unexceptionally gives the judge a certain latitude as to the amount of punishment. Though he is restricted as to the maximum, in almost every case he can give as little as he pleases, minimum punishments having been abolished by statute.(y) On conviction for treason or murder, however, sentence of death must be passed. Crimes against nature must be punished by at least ten years' penal servitude. Some crimes demand a wide limit of punishment; for example, manslaughter, where it may range from penal servitude for life to a merely nominal punishment according to the circumstances. But practically this works well, as the judges are quite competent to apportion the punishment to the crime; and the inconvenience of reposing that confidence in them is a less evil than the multiplication of technical distinctions which inevitably results from the multiplication of the definitions of crime.(a)

The punishment prescribed by statute for felonies is usually penal servitude for not less than five years, or impris onment not exceeding two years with or without hard labor. When the punishment is not prescribed by statute, the combined effect of several statutes(b) is, that such felonies may be punished by penal servitude for not more than seven nor less than five years, or by imprisonment for any term not exceeding two years; and, if a male, the court

(y) 9 and 10 Vict., c. 24.

(a) Fitz. St. 143.

(b) 7 and 8 Geo. 4, c. 28, 8 (see also 9); 20 and 21 Vict., c. 3, ¿ 2; 27 and 28 Vict., c. 47, 8 2.