Bullock against Dodds
| Jurisdiction | England & Wales |
| Judgment Date | 23 January 1819 |
| Date | 23 January 1819 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 361
IN THE COURT OF KING'S BENCH.
See Colonial Bank v. Whinney, 1885-85, 30 Ch. D. 283; 11 Ap. Cas. 426.
bullock against dodds. Saturday, Jan. 23d, 1819. By the word transportation in the 8 Gr. 3, c. 15, is meant not merely the conveying of the felon to the place of transportation, but his being so conveyed and remaining there during the term for which he is ordered to be transported ; and therefore a felon attainted is not by that statute restored to his civil rights till after the expiration of the term for which he is ordered to be so transported. 2dly, by attainder all the personal property and rights of action in respect of property accruing to the party attainted, either before or after attainder, are vested in the Crown without office found; and therefore attainder may be well-pleaded in bar to an action on a bill of exchange indorsed to the plaintiff after his attainder. [See Colonial Bank v. Whinney, 1885-86, 30 Ch. D. 283 ; 11 App. Cas. 426.] Declaration by the plaintiff, as indorsee, against the defendant, as payee of a bill of exchange, bearing date the 10th July, 1809. Plea first, non-assumpsit; secondly, the Statute of Limitations ; and thirdly, that at the Old Bailey Sessions, on the 16th September, 1807, the plaintiff was tried upon an indictment, (which was set out in the plea,) and duly convicted of felony; and that it was by the Court considered, that the plaintiff should be banged by the neck until he should be dead; that His Majesty, having been pleased to extend his Royal mercy to the plaintiff, on condition of his being transported to New South Wales for life; which being duly signified to the Court, by the Secretary of State, it was further considered, that the plaintiff should be transported to New South Wales, pursuant to the statute in such case made and provided ; and concluding in bar to the action. The fourth plea did not [259] differ materially from the third. Replication, after taking issue upon the two first pleas, that before the cause of action accrued, the plaintiff was in due manner transported K. B. xxxv.-12* 362 BULLOCK V. DODDS 2 B. & ALD. 260. to New South Wales, in execution of the judgment. Rejoinder, that after the plaintiff was so transported,|he was unlawfully at large in England. Surrejoinder, that before the cause of action accrued, His Majesty had, by his commission, under the Great Seal of Great Britain, given authority to the Governor of New South Wales, by an instrument in writing, under the seal of the Government of the territory, or as he should think fit or convenient for His Majesty's service, to remit either absolutely or conditionally the whole or any part of the term for which persons convicted of felony or other offences should be transported ; and that before the exhibiting of the bill, the Governor of New South Wales did, by a certain instrument in writing, under the seal of the territory, absolutely remit the remainder of the term or time which was then to come of the original sentence, or order of transportation mentioned in the plea; by virtue of which instrument, he was lawfully at large ; and concluding with a traverse of the allegation, that he was unlawfully at large. The defendant, after craving oyer of the instrument in writing, which was set out verbatim on the record, demurred to the surrejoinder, and the plaintiff joined in demurrer. This case was argued at the sittings in Serjeants' Inn, before Michaelmas term, by Manning, for the defendant, in support of the demurrer, and F. Pollock, contra. There were several objections taken to these pleadings, but the only one upon which the opinion of the Court was there delivered, and upon which it is necessary to state the arguments here, was upon an objection to the replication. [260] It was argued for the defendant, that as the plea shewed the plaintiff to be a felon convict, the replication stating only, that he had been transported in execution of the judgment, was no answer; for although a commutation of transportation for death operated as a statute pardon, that was only so after the period of transportation had expired; which was not the case here, inasmuch as the plaintiff was transported for life. The pardon pleaded was on condition of plaintiff's being transported ; and by the 8 G. 3, c. 15, such transportation is to have the effect of a pardon under the Great Seal; but that term, as there used, must mean not the mere act of being conveyed to the place of transportation, but the completion of the term of punishment. The statute 18 Eliz. c. 7, s. 3, repeals the old mode of trial by purgation, and enacts, that after clergy allowed, and burning in the hand, the party convicted shall forthwith be enlarged and delivered out of prison, and under that statute it has been held, that the burning in the hand has the same effect in clearing away the disabilities of conviction, as the old mode of purgation had; and it is therefore considered as in the nature of a statute pardon. Yet it has been expressly decided, that a person convicted of felony is not restored to his competency until that punishment be inflicted, or until a pardon under the Great Seal has been obtained; Earl of Warwick's case(5 How, State Trials, 166): for letters under the King's sign manual cannot be pleaded as a pardon, Gully's case (Leach, Crown Law, 99). Here the intended punishment of transportation for life has not been suffered, nor has any such pardon been obtained. The 4 G. 1, c. 11. s. 4, which is a statute upon the same subject, expressly enacts, that where any offender [261] shall be transported, and shall have served their respective terms, such services shall have the effect of a pardon to all intents and purposes. On the other hand it was argued for the plaintiff, that under 8 G. 3, c. 15, transportation operated as an absolute pardon, at the instant the party convicted arrived in New South Wales. If it were only a conditional pardon, it either would never operate at all until the term of transportation had expired, or it would operate until defeated, by the party being at large within the term; if it does not operate at all until the term is expired, this absurd consequence would follow, that a person transported for seven or fourteen years, who died before the expiration of his term, would derive no benefit from the pardon, in relation to his civil rights, so as even to enable him to sue in the Courts there, and thus a person transported for life could never derive any benefit whatever; indeed in that case it would be a pardon to a dead man. If it be said, that the pardon is absolute in the first instance, but liable to be defeated by a breach of the condition on which it was granted, the answer is, that such does not appear to have been the intention of the Legislature; for the statute expressly enacts, that such transportation shall have the effect of a pardon under the Great Seal: and then, in the very next sentence, the possibility of the offender's being at large within the term is contemplated. The statute does not, however, then render void the pardon, which was the subject of the former sentence, but makes 2B.&ALD.262. BULLOCK V. DODDS 363 the being at large within the term a distinct, substantive offence, punishable with death. After an interval of some days, the opinion of the Court was delivered afc Serjeants' Inn, by [262] Bayley J. There are two questions in this ease, one on the merits, viz. whether transportation amounts to a pardon, so as to restore the party to all...
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