[ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir; but the same shall escheat to the lord of the fee, subject to the Crown's superior right of forfeiture.] But having had occasion to enlarge on this matter in a former volume, where the subject of escheat was in question (b), it is not necessary to detain the reader longer upon it in this place.

In addition however to the forfeitures of lands and tenements consequential on attainder, it is proper here to notice the forfeiture of goods and chattels (real and personal), which accrues to the Crown not only on attainder, but in felonies of all sorts, whether capital or otherwise (c), [For flight also, on an accusation of treason or felony (d), whether the party be found guilty or acquitted, if the jury find the flight, the party shall forfeit his goods and chattels; for the very flight is an offence carrying with it a strong presumption of guilt, and is at least an endeavour to elude and stifle the course of justice prescribed by the law.] But in modern times it has not been usual for the jury to find the flight (e); [forfeiture being looked upon, since the vast increase of personal property of late years, as too large a penalty for an offence to which a man is prompted by the natural love of liberty.] And now by statute 7 & 8 Geo. IV. c. 28, s. 5, it is enacted, that where any person shall be indicted for treason or felony, the jury impanelled to

(b) Vide sup. vol. 1. p. 445 et seq. (c) Vide post, p. 546, n. (k). Forfeiture of goods and chattels accrues, consequently, in self-murder (vide sup. p. 146), and in misprision of treason (vide sup. p. 250); and in the case of striking or other outrage in the superior courts of justice (vide sup. p. 304). While any distinction existed between grand and petit larceny, it also accrued in the latter offence (vide sup. p. 203). On the

other hand, a conviction for larceny by way of summary conviction, under the 10 & 11 Vict. c. 82, 13 & 14 Vict. c. 37, or 18 & 19 Vict. c. 126, is not to be attended by any forfeiture. (As to these Acts, vide sup. pp. 412, 413.)

(d) Blackstone adds, 66 or even petit larceny."

(e) Staundf. P. C. 183 b; 4 Bl. Com. 387.

try such person shall not be charged to inquire concerning his lands, tenements or goods, nor whether he fled for such treason or felony.

[There is a remarkable difference or two between the forfeiture of lands, and of goods and chattels. 1. Lands are forfeited upon attainder, and not before; goods and chattels are forfeited by conviction (f): because in many of the cases where goods are forfeited there never is any attainder, which happens only where judgment of death or outlawry is given; therefore in those cases the forfeiture must be upon conviction, or not at all; and, being necessarily upon conviction in those, it is so ordered in all other cases; for the law loves uniformity. 2. In outlawries for treason or felony, lands are forfeited only by the judgment; but the goods and chattels are forfeited by a man's being first put into the exigent, without staying till he is quinto exactus, or finally outlawed (g); for the secreting himself so long from justice is construed a flight in law (h). 3. The forfeiture of lands has relation to the time of the fact committed, so as to avoid all subsequent sales and incumbrances; but the forfeiture of goods and chattels has no relation backwards; so that those only which a man has at the time of conviction shall be forfeited. Therefore a traitor or felon may bonâ fide sell any of his chattels, (real or personal,) for the sustenance of himself and family between the fact and conviction (i): for personal property is of so fluctuating a nature, that it passes through many hands in a short time; and no buyer could be safe if he were liable to return the goods which he had fairly bought, provided any of the prior vendors had committed a treason

(f) See Roberts v. Walker, 1 Russ. & Myl. 756.

(g) As to the proceedings to outlawry, vide sup. p. 466. (h) 3 Inst. 232.

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

Accordingly in the case of Whittaker v. Wisbey, 12 C. B. 44, a bona fide assignment after the commission day at the assizes, but before the day of trial, was held good.

N N

[or felony. Yet if they be collusively and not bonâ fide parted with, merely to defraud the Crown, the law, and particularly the statute 13 Eliz. c. 5, will reach them; for they are all the while truly and substantially the goods of the offender (k).]

(k) It may be observed that, though in ordinary cases, the property of a felon vests in the Crown, yet this is subject to exception [vide sup. p. 538, n. (2)]. Blackstone also remarks (vol. i, p. 302), that "for"feitures in general may be granted "by the sovereign to particular sub"jects as a royal franchise; and in"deed are for the most part granted

"out to lords of manors, or other "liberties, to the perversion of their "original design." In the city of London, the corporation, by virtue of antient charters, claims the right to the goods of all felons convicted within their jurisdiction. (See Pulling on the Laws and Customs of London, 2nd edit. p. 93.)

CHAPTER XXIV.

OF REVERSAL OF JUDGMENT.

[WE are next to consider how judgments, with their several connected consequences of attainder, forfeiture, and corruption of blood, 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. So likewise if a man purchases land of another, and afterwards the vendor is, either by outlawry or his own confession, convicted and attainted of treason or felony previous to the sale or alienation, whereby such (a) Vide sup. p. 424.

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

[land becomes liable to forfeiture or escheat; now, upon any trial, the purchaser is at liberty, without bringing any writ of error, to falsify not only the time of the felony or treason supposed, but the very point of the felony or treason itself; and is not concluded by the confession or the outlawry of the vendor; though the vendor himself is concluded, and not suffered now to deny the fact, which he has by confession or flight acknowledged. But if such attainder of the vendor was by verdict on the oath of his peers, the alienee cannot be received to falsify or contradict the fact of the crime committed; though he is at liberty to prove a mistake in time, or that the offence was committed after the alienation, and not before (b).

Secondly, a judgment may be reversed by writ of error; which lies from all inferior criminal jurisdictions] to the Court of Queen's Bench (c), and from the Queen's Bench to the Court of Exchequer Chamber (d), and thence to the House of Peers; and may be brought for notorious and substantial mistakes in the judgment or other parts of the record; [as where a man is found guilty of perjury, and receives the judgment of felony.] 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 (e). 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 pro

(b) 3 Inst. 231; 1 Hale, P. C. 361.

(c) 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.

(d) 11 Geo. 4 & 1 Will. 4, c. 70, s. 8. As to the Court of Exchequer Chamber, vide sup. vol. III. pp. 427, 428. As to its jurisdiction, and the practice therein, as a court of error in criminal cases, see Mansell v. The Queen, 8 Ell. & Bl. 85.

(e) Vide sup. p. 466.