Richard Whitaker v Wisbey
| Jurisdiction | England & Wales |
| Judgment Date | 04 February 1852 |
| Date | 04 February 1852 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 817
IN THE COURT OF COMMON PLEAS
S. C. 21 L. J. C. P. 116; 16 Jur. 411.
eichaed whitaker o. wisbey. Feb. 4, 1852. [S. C. 21 L. J. C. P. 116; 16 Jur. 411.] An assignment of a felon's goods, bona fide made, for a good consideration, after the commission day of the assizes, but before the day upon which he was actually tried and convicted, will pass the property. This was an action of trover for household furniture, goods, and chattels. Pleas, -not guilty, and not possessed. The cause was tried before Cresswell, J., at the last Summer Assizes at Huntingdon. The plaintiff claimed the goods in question under an assignment thereof made to him by his brother, Thomas Whitaker, on the 20th of March, 1851, under the circumstances hereinafter mentioned. The defendant was an auctioneer at Cambridge, who had sold the goods [45] under the direction of the corporation of Cambridge, who claimed to be entitled to them as grantees of felons' goods. George and Thomas Whitaker, the father and brother of the plaintiff, were tried and convicted of arson, at the last Spring Assizes for Cambridge. The commission day was Wednesday, the 19th of March; the deed of assignment was executed by Thomas ' Whitaker, for a good consideration, on the 20th; and the prisoners were tried and convicted on the 22nd. The defendant put in the record of the conviction formally drawn up, the caption alleging it to have taken place on the first day of the assizes, viz. the 19th of March; and it was insisted that this was conclusive evidence that the conviction took place on that day, and that it was not competent to the plaintiff to shew, that, in point of fact, the conviction was after the date of the assignment. The jury having found that the deed was executed bon& fide, and for a good consideration, the learned judge directed a verdict to be entered for the plaintiff, reserving leave to the defendant to move to set it aside, and to enter the verdict for him, if the court should be of opinion that the record was the only admissible evidence to shew the date of the assignor's conviction. Prendergast, in Michaelmas Term last, accordingly obtained a rule nisi to enter a verdict for the defendant upon the second issue. He submitted that the conviction had relation to the first day of the assizes, and that it was not competent to the plaintiff to shew that it took place on a later day. Pie cited The King v. Thurston, 1 Lev. 91, Anonymous, Case ccciii, 1 Anderson, 294, Panter v. The Attorney-General, 6 Bro. P. C. 486, and Eolle's Abridgment, Execution (Z), pi. 13, p. 892. [46] Worlledge and Bircham now shewed cause. So far as regards the goods of felons, it is clear that the title of the crown only relates back to the time of the conviction. In Bale's Pleas of the Crown, Vol. 1, p. 361, it is said: "The goods of a person convict of felony or treason, or put in exigent for the same, or that fled for 818 WH1TAKER ?. WISBEY 12C.B.4T. these oiFences, or that stands mute, are forfeit to the King. But the relation of these forfeitures refers not to the time of the offence committed or to the time of the flight, but only to the conviction, or to the time presented, or to the time of the exigent awarded. And therefore an alienation made by the felon or traitor, or person flying, bonii fide and without fraud, mesne between the offence or the flight and the conviction, or presentment of the flight, is good, and binds the King: but, if fraudulent, then it is avoidable by the .statute of 13 Eliz. c. 5." Again, p. 365,-"By the statute 25 E. 3, c. 14, where a party is indicted of felony, the process directed by that statute, is, first, a capias, and, if he be not found, a second capias, together with a precept to seize his goods, and, if he be not found, then an exigent, and the goods to be forfeit. And this is more than a simple seizure, such as was before at common law; for, if the party came not in, his goods are forfeit upon the award of the exigent; and, if he came in, though his goods be saved, yet there is no direction for delivering his goods upon security ; but it seems the sheriff is to take them into his custody, and yet out of them must allow sufficient for the sustenance of the prisoner and his family. Quaere, whether, in the case of such a seizure, a sale for a valuable consideration before conviction and after seizure do not bind the King; as it seems it doth in the case of seizure and delivery to the Villata : vide Fleetwood's case, 8 Co. Eep. 171. This statute extends as well to treason as to felony, and yet it mentions only felony; and therefore at this day [47] the exigent goes out upon the second capias returned non inventus, as well in treason as felony. By the statute of 1 Eic. 3, c. 3, it is enacted 'that neither sheriff, &c., nor other person, take or seize the goods of any person arrested or imprisoned, before he be convict of the felony according to the law of England, or before the goods be otherwise lawfully forfeited, upon pain of forfeiting the double value of the goods so taken.' Mr. Stamford thinks this is but an affirmance of the common law, only that it gives a penalty; but it seems to be somewhat more than so, for, this prohibits the seizure of the goods of a party imprisoned, though he were also indicted, but not yet convicted, where unquestionably the common law allowed such a seizure, as is before declared, if the party or his friends did not secure the forthcoming of the goods, where the party was indicted." In Perkins v. Bradley, 1 Hare, 219,- where it was held, that an assignment of funds by a prisoner on a charge of felony, to secure payment of an antecedent debt, and costs to be incurred in his defence, was established, notwithstanding his subsequent conviction,-Sir J. Wigram, V.-C., says: "To the argument, that a colourable alienation of goods by a person under a charge of felony, for the purpose of avoiding a forfeiture, would be fraudulent and void as against the crown, I assent: but it is a principle which is well settled, that, in the Case of goods and chattels, the forfeiture has relation only to the time of conviction : Hawk. P. C., b. 2, c. 49, 13, 30. The forfeiture is by conviction : Co. Litt. 391 a.: a rule which is inconsistent...
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