[by sale in a market overt (m); a doctrine which, though it may seem somewhat hard on the buyer, yet the rule of law is, that spoliatus debet, ante omnia, restitui: especially when he has used all the diligence in his power to convict the felon. And since the case is reduced to this hard necessity, that either the owner or the buyer must suffer, the law prefers the right of the owner,-who has done a meritorious act by pursuing a felon to condign punishment, to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction (n).] In reference, however, to the above doctrine, notice may be taken of the following provision in the 30 & 31 Vict. c. 35, s. 9,—viz., that where a prisoner has been convicted of any offence which includes the stealing of any property, and it shall appear to the court that the prisoner has sold such property to one who had no knowledge that the same was stolen, it shall be lawful for the court, on the application of such purchaser, and on the restitution of the stolen property to the prosecutor, to order a sum, not exceeding the proceeds of the sale, to be delivered to the purchaser out of any monies which may have been taken from the prisoner on his apprehension. Moreover, by the 33 & 34 Vict. c. 23, ss. 3, 4, the court was enabled to condemn an offender, who has been convicted of treason (m) 1 Hale, P. C. 543; 4 Bl. Com. 363. Even without any award of restitution, the party may peaceably retake his goods whereever he happens to find them, unless a new property have been fairly acquired therein. And (under some circumstances) he may bring an action of trover against any one who has bought them. (See White v. Spettigue, 13 Mee. & W. 603; Scattergood v. Sylvester, 15 Q. B. 506.) He may also (it is said) bring an action against the felon if he is convicted and par doned. "But such actions lie not before conviction; for so felonies would be made up and healed; and also recaption is unlawful, if done with intention to smother or compound the larceny." (4 Bl. Com. 363.) As to compounding felony, vide sup. p. 271. (n) See the observations in the Report of the Criminal Code Bill Commission (p. 40), as to the doctrine of restitution, in reference, to rights of property innocently acquired by a third party. or felony, (the same statute abolishing the former rule that on such conviction his property was forfeited to the crown,) to pay the costs of the suit (o); and also, on the application of any person aggrieved, a sum of money by way of compensation not exceeding 1007. (0) See The Queen v. Roberts, Law Rep., 9 Q. B. 77. CHAPTER XIX. OF JUDGMENT AND ITS CONSEQUENCES. WE are now to consider the next stage of criminal prosecutions after trial and conviction are past,-which is that of judgment (a). For when, upon a charge of felony, the jury have, in the presence of the prisoner, brought in their verdict, "guilty," he is either immediately, or at a convenient time soon after, asked by the court, if he has anything to offer why judgment should not be awarded against him. And, upon a charge of misdemeanor, in case the defendant be found guilty in his absence, (as he may be,) a capias is thereupon issued, to bring him in to receive his judgment; and, if he absconds, he may be prosecuted even to outlawry; but no corporal punishment can in any case be awarded against a defendant unless he be personally present (b). But whenever he appears in person, he may at this period offer any exceptions to the indictment, in arrest of judgment (c): as for it being more usual to resort to this, after conviction, than by way of declinatory plea to the indictment (as to which, vide sup. p. 398, n.). This benefit of clergy constituted, in former times, so remarkable a feature in our criminal law, and a general acquaintance with its nature is still so important for the illustration of our books, that it may be desirable to subjoin here some fur. ther notice on the subject. It originally consisted, in the privilege allowed to a clerk in orders, when prosecuted in the temporal court, of some defect apparent on the face of the record; for it is to defects of that kind only, that the motion in arrest of judgment applies (d). Formerly, indeed, the judgment being discharged from thence, and handed over to the Court Christian, in order to make canonical purgation, that is, to clear himself on his own oath, and that of other persons as his compurgators, (see Hist. Eng. L. by Reeves, vol. 2, pp. 14, 134; 25 Edw. 3, st. 6, c. 4, et sup. bk. v. ;) a privilege founded, as it is said, upon the text of Scripture, "Touch "not mine anointed, and do my "prophets no harm." In England, this was extended by degrees to all who could read, and so were capable of becoming clerks; and ultimately allowed by 6 Ann. c. 9, without reference to the ability to read. (Reeves, ubi sup., et vol. 4, p. 156; 2 Inst. 637; 1 Edw. 6, c. 12.) But by 4 Hen. 7, c. 13, it was provided that laymen allowed their clergy should be burned in the hand, and should claim it only once; and as to the clergy, it became the practice in cases of heinous and notorious guilt, to hand them over to the ordinary absque purgatione faciendâ, the effect of which was that they were to be imprisoned for life (4 Bl. Com. 369); although afterwards, by 18 Eliz. c. 7, the delivering over to the ordinary was abolished altogether. As to the nature of the offences to which the benefit of clergy applied, it had no application except in capital felonies; and from the more atrocious of these it had been taken away by various statutes, prior to its entire abolition by 7 & 8 Geo. 4, c. 28, s. 6. As the law stood at the time of that abolition, clerks in orders were, by force of the benefit of clergy, discharged in clergy able felonies without any corporal punishment whatever, and as often as they offended (2 Hale, P. C. 375); the only penalty being a forfeiture of their goods. And the case was the same with peers and peeresses, as regards the first offence; and even after the 7 & 8 Geo. 4, c. 28, doubts were entertained whether the privilege of lords or peers in parliament in this respect did not still exist. This doubt led to the passing of 4 & 5 Vict. c. 22, enacting that, upon conviction for any felony, such persons shall be punishable as any other of her majesty's subjects. As to commoners, also, they could have benefit of clergy only for the first offence; and they were discharged by it from the capital punishment only,-being subject on the other hand, by 3 Geo. 1, c. 11, 6 Geo. 1, c. 23, and 19 Geo. 3, c. 74, not only to forfeiture of goods, but to burning in the hand, whipping (except in manslaughter), fine, and imprisonment, (or, in certain cases, transportation,) in lieu of the capital sentence. See 4 Bl. Com. P. 371. (d) It is to be noticed that it is only in respect of error in law apparent on the record, and with regard to which no question shall have been reserved for the consideration of the judges, that any appeal to the Court of Appeal or otherwise lies from the judgment of the High Court "in any criminal cause or matter" (see 36 & 37 Vict. c. 66, s. 47; R. v. Steel, Law Rep., 2 Q. B. D. 37; The Queen v. Fletcher, ib. 43; Blake v. Beech, ib. 2 Ex. D. 335). might be arrested for merely formal defects, as for want of sufficient certainty in setting forth the person, the time, or the place; but now, as we have seen, defects of a merely formal kind are, in some cases, wholly immaterial; and, in none are allowed to be brought forward, except by way of demurrer, or motion to quash the indictment (e): so that a motion in arrest of judgment can be now made only in respect of some substantial objection (ƒ), and even with regard to some of these the defect is aided by verdict (g). Upon such motion, if the objection taken appear to be sufficient, the court will arrest the judgment; that is, abstain from pronouncing any judgment, and discharge the prisoner. But such a result is not, like an acquittal by verdict, an absolute discharge from the matter of accusation, for the party may be indicted again (h). By recent legislation, another method also is now provided for protecting a prisoner found guilty by verdict, from having judgment or execution awarded against him, where, in point of law, it ought not to be awarded; for, supposing the trial to be in a court of oyer and terminer, gaol delivery, or quarter sessions, and any question of law to arise on such trial on motion for arrest of judgment, (or even independently of such motion,) which the court finds too difficult for its determination,-it is empowered by 11 & 12 Vict. c. 78, to reserve the question; and to state it in the form of a special case for the consideration of the judges of the Queen's Bench Division of the High Court (i); and in the meantime to postpone the judg (e) Vide sup. p. 401. (f) See Larkin's case, 1 Dears. C. C. R. 365. (9) See Heymann v. The Queen, Law Rep., 8 Q. B. 102. (h) See 4 Rep. 45. (i) In the Report of the Criminal Code Bill Commission (p. 37) it is stated, that "up to the year 1848 "it was the practice, if any ques"tion of law which would not ap'pear on the record arose at a |