WAIF. If the goods of any person were stolen, and the felon, thinking that pursuit. was made after him, fled, and during his flight waived or abandoned the goods, they became waif, and were forfeited to the crown. or to the lord of the manor, if he were entitled to waif.
No goods could become wall which were not in possession of the felon at the time of his flight. Therefore, if he concealed the goods, or placed them in a house, or, for instance, loft a horse at an Inn in pledge for his meat, and aftorwards fled, the goods did not become waif.
It was necessary, in order to complete the title of the crown or lord of the manor to waif, that it should be taken possession of by some one on his behalf ; otherwise the original owner was not barred from recovering his goods nt any period of time, and if he seized them first, they remained his property. The forfeiture of goods waived was instituted fin-the purpose of stimulating the person robbed to make fresh pursuit after the felon, and so, if possible, catch him with the goods upon him. And in further encouragement of such pursuit, it was pert of the law, that if the owner succeeded, within a year and a day, in attainting the thief, lie was entitled again to recover his goods from the crown or the lord of the manor, even though they had been reduced into possession. Tho restriction of the character of waif to goods waived during the flight was because goods which had been con cealed by the felon would afford no track of his course, and might very possibly escape the search of the owner, even though he did make fresh pursuit. It is said also that the geode of foreign merchants could not become the subject of waif, because a foreigner, ignorant of our language and usages, could not be expected to act with the same despatch and effect as a native. Lord Coke distinguishes
between waif which was stolen property, and the goods which were the property of a person who fled for a felony. These latter were always forfeited on proof and finding by a jury of that fact, even though the party were acquitted of the felony. Part of the inquiry, therefore, on the trial of a prisoner for felony, was whether or not he fled for it. If the jury found that he did, his goods were forfeited, whatever might be the verdict as to his guilt. This was either because of the presumption which his flight raised, that he really had com mitted the offence, though it could not be legally proved against him ; or, according to Mr. Justice Foster, because his flight tended to atop or embarrass the course ofjustice against the real offender. If he was killed during his flight, the coroner's jury inquired as to his flight as well as respecting the cause of his death.
By 7 & 8 Geo. IV., o. 29,s 67, the court before whom a prisoner is convicted has power in all oases, without restriction as to time, to order restitution of stolen property to the owner, except as to negoti able instruments In the hands of parties who, without notion, have given value for them : and by 7 & 8 Geo. IV., e. 28, s. 5, the jury are no longer to be charged to inquire whether a prisoner fled for treason or felony. The consequence is that no forfeiture can now be incurred by such flight.
(5 Co. 109 ; Corn. Dig. tit. Waite?)