Imágenes de páginas

But no person under the age of discretion, or being non compos mentis (9), can be felo de se, even though in the latter case the person becomes of sound mind before he dies (h).

Neither is a person who designs to commit suicide deemed a felo de se, unless he die within a year and a day after the act(i).

A felo de se forfeits all chattels, real as well as personal, belonging to him at and after the time of committing the act, or of which he may be possessed jointly with or in right of his wife (k). And the inquisition having relation to the act of suicide, all intermediate alienations are avoided (1).

But the act of suicide does not work a corruption of blood, so that the lands of inheritance of a felo de se are not forfeited, nor is his wife barred of her dower (m).

The forfeiture of the goods and chattels of a felo de se is to the king(n), or his lawful grantee (o), and they cannot be claimed by prescription,

(g) It has been thought that a person (m) Plow. Com. 261 ; 3 Inst. 55; who kills himself must be non compos men

Britt. c. 7; 1 Hawk. P. C. c. 27, s. 8; tis, on the supposition that no man in his Hale, H. P. C. 413. Corruption of blood senses could do a thing so repugnant to is taken away by 54 Geo. 3, c. 145, in all nature and reason; 3 Mod. 100; but in cases except treason and murder; ante, p. Hawk. Pl. C. c. 27, s. 3, this notion is 631, n. (2). justly exploded. And see 4 Bl. Com. 189.

(n) Where the forfeiture belongs to the (1) Plow. Com. 260; Fitz. Abr. tit.

crown, it is now usual for the king to make Coron. pl. 412, 244, cites 8 E. 2, 22 E. 3, a warrant under his sign manual, on a me3 Inst. 54.

morial being presented by a creditor of the (i) 3 Inst. 54.

deceased, authorising the Ecclesiastical (k) Plow. Com. 260, in Hales v. Petit; Court to grant letters of administration to 3 Inst. 55; 1 Hale, H. P. C. 413. It has the memorialist, and the administrator been said that choses in action to which a would be answerable for the debts of the felo de se is jointly entitled with another

deceased, and could not dispute the vali. are wholly forfeited, with the exception of dity of the administration against his own the case of two joint merchants; contra, act; Megit v. Johnson, Dougl. 542; Serjt. as to joint personal chattels in possession ; Williams's ed. of 1 Saund. 272 a, n, l. 8 E. 4, 4, Plow. Com. 259 b; 3 Inst. 55; (0) Ante, p. 638, n. (f). Whether a Sir T. Raym. 7. But again it has been

grant from the crown of the chattels of all said that he shall forfeit a moiety only of felons of themselves will pass the chattels such joint chattels as may be severed, and of a felo de se, claimed under a franchise nothing as executor or administrator; forfeited by attainder of treason after such Hawk. P. C. c. 27, s. 7; 3 Bac. Abr. 143 grant, see The Bishop of Chester 0. Webb, (C.)

Dy. 107 b. Equity will relieve against a forfeiture By the stat of 4 & 5 W. & M. c. 22, it of a chattel by a trustee; King v. Cooper, is enacted, that no corporation, lord or Hardr. 176; even against the king, upon lords of manors, or other person or perthe stat. of 33 H. 8, c. 39; but the appli- sons, having grants by charter, or other cation should be to the Court of Exche- good conveyances, who have enrolled, and quer, as a court of revenue; ib. 176, 469; had the same allowed in and by the Court 1 Vern. 439; 2 Atk. 223.

of B. R., shall be compelled to plead the (1) Plow. Com. 260; 5 Co. 110. same to any inquisition returned by any

as in the case of estrays, waifs, wreck, &c.(p).

It would seem that such goods are not liable in the hands of the king to the debts of the felo de se, nor indeed in the hands of the grantee, except to satisfy debts due to the crown (9).

Nor are the goods and chattels forfeited, until it be found by the coroner's inquisition (upon the oath of twelve men) that the party is felo de se (r), which finding must be super visum corporis(s).

The coroner, who is a judicial officer (t), must be present at the view of the body, or the inquisition will be void (u); and he is at

coroner; and that if there be any corpo- themselves, and the inquisition before the rations, lords of manors, or other persons, coroner finding the deceased to be such a who bave such charters or grants from the felon, by which he forfeited his goods, and crown for felons' goods, deodands, and that those in question were his. If the other forfeitures, such corporations, &c. coroner's inquisition omit finding the shall not be compelled to enrol their whole goods of the felo de se, that, it seems, may charters and grants, but bring in the same be supplied by a writ of melius inquirento the clerk of the crown of the said court, dum directed to the sheriff; 1 H. H. P. C. who shall enrol so much thereof as may 415." express and set forth the grants of such (p) Foxley's case, 5 Co. 109 b; Co. felons' goods, deodands and forfeitures,

Lit. 114 b. and no more; and from and after such (g) 4 Leo. 6, ca. 28. enrolment, no corporation, &c., or other (r) Plow. Com. 260; Rex v. Ward, 1 persons, grantees of such goods or forfei- Sid. 150; S. C. 1 Keb. 548. But see S. tures, shall be compelled to plead the same C. 1 Lev. 8, in which it is said that the in the said court to any inquisition there- goods were held to be forfeited to the king, after filed therein, touching any goods found by the act itself, before inquisition ; but thereby; and the act inflicts a penalty this seems to be a mistake; vide n. 1 to 1 upon any clerk of the crown who shall Saund. 362. issue out any process against any grantees (s) 3 Inst. 55; 4 Inst. 271; 1 Hale H. of such felons' goods, deodands and other P. C. 414, 415; 1 Hawk. P. C. c. 27, 8. forfeitures after such enrolment or entry;

11, 12. see Lex Man. p. 74. Vide also the fol- (t) But as no other officer is recognised lowing note in Serjt. Williams's ed. of by the law in an inquisition of this nature, Saund. Rep. p. 272. “Since the passing it is the duty of the coroner to summon of this act [4 & 5 W. & M. c. 22, sup.] the jury, so that he acts also in a ministhe coroners have discontinued returning terial character; vide also 4 Inst. 271. their inquisitions into the K. B. If a man (u) 1 Hawk. P. C. c. 27, s. 11,

2 be found felo de se by the coroner's inqui- ib. c. 9, s. 23, 24; 2 Hale, H. P. C. 58. sition, the jury ought also to find whether See the act of 4 Ed. 1, st. 2. Vide also he had any goods and chattels at the time Rex v. Ferrand (the Oldham case), 3 he committed the felony or not; and if he Barn. & Ald. 260; 1 Chitty, K. B. 745; had any, to specify the same in an inven- in which the Court of B. R. refused to tory annexed to the inquisition; the form grant a mandamus to compel the coroner may be seen in the books of practice of to proceed in the inquiry of the cause of the crown, Crown Circ. Assist. 90, &c. death, the whole proceeding being illegal The goods may then be seized for the use and extra-judicial; for the jury had first of the king or his grantee, and if tres- seen the body, and were then sworn by passes be brought against the grantee for the coroner's clerk, and subsequently were such seizure, he must in his justification sworn by the coroner, but not super visum set out the grant of goods of felons of corporis.


such view to administer the oath to the jury super visum corporis. Doubts have been entertained whether a coroner can act by deputy (x); and as it has been a common practice to appoint more than one coroner in a county, there would seem to be some grounds for this doubt (y).

If the body cannot be found, the coroner has no jurisdiction, but a presentment may be made, as well in that case as upon the coroner's omission, either before the justices of oyer and terminer, or before the justices of the peace, who have power by their commission to inquire of all felonies; or the presentment may be in the King's Bench, if the offence be committed in the county where that court

sits (z).

It was formerly supposed that the executors or administrators of the deceased could not traverse the coroner's inquisition (a), though they should have a traverse to an inquisition by justices of the peace for the county (b); but it should seem to be fully settled, that the coroner's inquisition may be removed by the executors or administrators of the deceased into the K. B. by certiorari, and there traversed (c).

No traverse, however, can be taken to an inquisition not finding the party felo de se, as if the inquisition find that he was non compos mentis (d); yet, if it should appear that the finding in such a case

And see

(r) Rex v. Ferrand, sup. Crompt. Just. 227; 2 Hale, H. P. C. 58.

(y) But see Ex parte Parnell, 1 Jac. & Walk. 451, where a coroner had acted by deputy for twelve months, and no notice was taken by the court of its illegality; and see 3 Barn. & Ald. 264, in Rex v. Ferrand.

(z) Foxley's case, ubi sup. ; Stanlack's case, 1 Vent. 182; 1 H. H. P. C. 414; 2 ib. 589; 1 Hawk. P. C. c. 27, s. 12; 3 Inst. 55. But the grand jury have no power to find such an inquisition under a general charge from the judge of assize; Rex v. Killinghall, 1 Burr. 17.

(u) 3 Inst. 55, cites Stanf. Pl. Cor. 183 d. And see Br. Coron. pl. 15); ib. Travers per sans ceo, pl. 229, citing 8 E. 4, 4, 3.

(6) 3 Inst. 55.

(c) 1 Hawk. P. C. c. 27, s. 12; 2 ib. c. 9, s. 52. Lord Hale also was of opinion that the inquisition was traversable; Hal. H. P. C. 416, 417, cites Barclay's case, B. R. 1658, and Page's case in the Exch.


P. 45 E. 3. And see Rex v. Storke, 3 Keb. 800, citing Rowell's (or qy. Aldenham's] case ; Ripley's case, T. Jones, 198; S. C. Skin. 45 ; The Queen v. Clerk, Salk. 377; S. C. 7. Mod. 16; 2 Lev. 141, in The King v. Packer; The King v. Aldenham (or Alderman), ib. 152; 3 Keb. 564, 566, 604 ; The King v. Stanlake (or Stanlack), 2 Keb. 859; S. C. 1 Vent. 181. Vide also 1 Vent. 239, 278.

(d) Rex v. Storke, sup. And see Anon. 1 Vent. 239 ; 1 Saund. Rep. 363, n. 1, by Serjt. Williams. But see Br. Coron. pl. 151.

Although a coroner returns the inquisition to B. R. finding the deceased non compos, yet he is not obliged to return the depositions, unless something should be depending before the court to render it necessary ; 2 Str. 1073.

See further as to the duty of a coroner, 4 Inst. 271; 2 Hawk. P. C. c. 9; 2 Hal. H. P. C. c. 8; the stats. 4 Ed. 1, st. 2, and 25 Geo. 2, c. 29, furnishing additional powers for the removal of coroners in cases


were obtained by any indirect proceedings of the coroner, the Court of B. R. would grant a melius inquirendum directed to the sheriff or to special commissioners, who are to proceed on the testimony of witnesses, but not super visum corporis (e). It is, however, the practice not to grant a melius inquirendum when the inquisition is traversable (f), nor unless a manifest misbehaviour in the coroner is established by affidavit (g).

It appears that if the goods of a felo de se are in the possession of any person who refuses to deliver them up, the king may prefer an information in the Exchequer in the nature of trover and conversion; and that in case of debts being due to the deceased, the king may either proceed by information in B. R., as in the case of The King v. Sutton (h), or in the Exchequer by his attorney-general, and that the latter is the most usual practice (i).

And that a grantee of the chattels of a felo de se may bring an action of trover for the recovery of goods detained by a third person, and may have a scire facias for debts of record, or an action of debt for any other debt due to the deceased (k). of extortion, neglect of duty, or misde- mation ought to have averred the fact that meanor; Ex parte Parnell, ubi sup. ; 7 T. the party was found felo de se, and then to R. 52; 2 Barn. & Ald. 203.

have shown the substance of the inquisiA coroner has been committed for falsely tion, and concluded with a prout, &c. And returning an inquisition of felo de se, the see 2 Lutw. 1342. But this does not seem party being lunatic; Rex v. Wakefield, I to be necessary, see N, 7 to 1 Saund.

275 a. (e) 2 Hawk. P. C. c. 9, s. 53; Rex v. (i) 1 Saund. 272 a, n. (1), by Serjeant Bunney, 1 Salk. 190 ; S. C. 3 Mod. 238; Williams. Rex v. Hethersal, 3 Mod. 80; and see (k) Ib.; Serjeant Williams adds, “in Cro. Eliz. 371. And the omission to find which action it is necessary to state in the the goods of the felo de se may be supplied declaration the nature of the debt, the by a writ of melius inquirendum; Hale H. grant of such felon's debts to the plaintifi P. C. 415; 2 Keb. 859, in Stanlake's case. or some of his ancestors, and the inquiAnd see S. C. 1 Mod. 82; ante, p. 639,

sition before the coroner, whereby an acn. (o).

tion, &c., Brownl. Rediv. 181; Asht. 205; () Ripley's case, T. Jones, 198. Yet and if the debt arises on a bond or other upon a case clearly made out against the specialty, it seems proper to aver that the coroner, the court of B. R. would set aside deceased had such bond or specialty in the the inquisition ; Barclay's case, and Stan. place at the time he killed himself. The lake's case, ubi sup. ; Anon. Vent. 352. defendant in his plea must deny the debt In Stanlake's case, 1 Mod. 82, Newdigate to be due to the deceased, and therefore said, " that in the case of Miles Bartley if the declaration states that the defendant [Barclay] the inquiry was not filed, and was indebted to the deceased by bond, he that that was the reason why a new one must plead non est factum ; if on a simple was granted.”

contract, non assumpsit, &c.; if he says (g) Rex v. Hethersal, Rex v. Bunny, nil debet to the plaintiff, he admits that he and Ripley's case, sup.; 1 Vent. 182, 352. was indebted to the deceased, and all that

(h) 1 Saund. 273 (ubi sup.): In this will be incumbent for the plaintiff to prove case the reporter suggests that the infor- is, that he is a grantee of such goods, and

Str. 69.

As the goods of a felo de se are not forfeited until inquisition found, the forfeiture is saved by a pardon of the offence before such finding (1); but a general pardon after inquisition, without words of restitution, will not revest the property in the administrator of the deceased, though it will operate as a release of a debt which the king might otherwise bave claimed (m).

The coroner's inquest must show with certainty the nature of the felonious act, and describe the wound, and conclude that it was the cause of the death (n), sic seipsum murdravit, or it will be quashed (0): but if it be full in substance, the coroner may be served with a rule to amend a defect in form (p). So where it was found that G. seipsum felonicè submersus fuit, but it was not said that he threw himself into the water, nor did the inquisition conclude with “ and so he died,” the court ordered the inquisition to be amended, the substance, namely, felonicè submersus fuit being found (q).

DEODANDS (r).—Deodands (which sometimes also belong to the lord of the manor by grant from the crown) are defined to be omnia quæ movent ad mortem (s), and have been supposed to have originated in the notion which our ancestors had of purgatory; for when a person came to a sudden and untimely death, without having time to the defendant will not be permitted to give as not to produce infection. And see 2 any other evidence but payment to the Hal. H. P. C. 58. But this should be plaintiff."

with leave of the court of B. R.; Barclay's (1) Rex v. Saloway, 3 Mod. 101; Rex case, ubi sup., 1 Str. 167, 533. 0. Ward, 1 Sid. 150; S. C. 1 Keb. 548. (0) Inquisitions have been quashed for But see S. C. 1 Lev. 8; 1 Keb. 66; ante, omitting this conclusion; Rex v. Aldenp. 640, n. (r). See also Lock v. Ether- ham (or Alderman), 2 Lev. 152; S. C. ington, 1 Sid. 264.

3 Keb. 604; 1 Hawk. P. C. c. 27, ss. 13, (m) Toomes v. Etherington, 1 Saund. 14. But it would not seem to be essential. 361; S. C. 1 Lev. 120; 1 Sid. 167; 1 See Hales o. Petit, Plow. 255 a; Rex o. Keb. 628. And see the pleadings in this Warner, 1 Keb. 66; The Queen v. Clerk, case, Lex Man. App. ca. 21 ; 1 Saund. 352 b; Rex v. Saloway, sup. Vide also (p) Rex v. Harrison, 1 Sid. 225; 1 5 Co. 110 b, in Foxley's case; 2 Mod. 53, Hawk. P. C. c. 27, s. 15. in Rex v. Turvil; 3 Mod. 242, 243, in (9) Rex v. Glover, 1 Sid. 259; S. C. Rex v. Johnson; 2 Hawk. P. C. c. 37, 1 Keb. 907. And see Rex v. Saloway,

3 Mod. 100. (n) The Queen v. Clerk, 1 Salk. 377; (r) This royalty is not specified in the S. C. 7 Mod. 16; Lex Man. 83, ca. 12. 82nd clause of 4 & 5 Vict. c. 35, among And see Anon. 12 Mod. 112.

the manorial rights excluded from the In the above case of the Queen 8. Clerk, operation of the act, unless expressly comHolt, C. J., held, that a coroner need not muted, but it is embraced by the general go ex officio to take the inquest, but ought

words «

or any other manorial rights to be sent for ; that to bury the body with- whatever." out sending for the coroner was a misde- (8) Lex Man. 72; Bract. I. 3, c. 5, meanor, and that the body might be dug 122 a; Hawk. Pl. C. 66, 67, c. 26, s. 6. up again within a reasonable time, and so

ubi sup:

S. 54.

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