stitutes

overt.

Every shop in the city of London is a market overt What conevery day (except Sundays (c)), in respect of goods market and chattels usually exposed to sale by their respective owners (d). So in Bristol, or elsewhere, by custom (e). The Strand was held not to be market overt (f). A wharf, even in London, is not market overt, and a sale there does not alter the property against the rightful owner, though goods of the same sort be proved to be usually sold in such wharf (g). And, it is said, the king cannot grant that a shop shall be a market overt (h). Even in London each shop is not a market overt for goods improper and foreign to the owner's trade, as plate in a scrivener's shop (i). So, if horses be sold in Cheapside, or

(c) The vendee in pleading must aver and prove that the sale was on a lawful day; Burch v. Scorry, 12 Mod. 309; Marshall v. Porter, Vin. Abr. Market, K. 3. The stat. 27 Hen. VI. c. 5, makes fairs held on Sundays illegal. See 1 Taunt. 136. [Of contracts of sale, in general, made upon Sunday, vid. supra, p. 95.] (d) Market overt's Case, 5 Rep. 83a; 8 Rep. 127; Godb. 131; Waggoner v. Fish, 2 Brownl. 284; Panton v. Hassell, Hetley, 63.

(e) Com. Dig. Market, E. Vid. per Lord Hardwicke, C. J., in Harris v. Shaw, Ca. temp. Hardw. 350; Hetley, 62.

(f) Anon. 12 Mod. 521.

(g) Wilkinson v. King, 2 Camp. 335. The mere publicity of a sale is not of itself sufficient to bar the real owner. Where goods were wrongfully sold by the sheriff by public auction, the owner recovered in trover against the purchaser; Farrant v. 3 Stark. N. P. C. 130.

(h) Clifton v. Chancellor, Moor, 625, per Cur.

(i) 2 Inst. 713; Vin. Abr. Market, *A; Bishop of Worcester's Case, Moor, 360; S. C. 1 Ander. 344; Poph. 84; Palmer v. Wolley, Cro. Eliz. 454; Taylor v. Chambers, Cro. Jac. 69.

Who are bound by the sale.

Sale not binding,

where pur

chaser is guilty of fraud.

goods in Smithfield (k). If the sale be in a covert place within the fair or market, it does not change the property; as, in a back room or warehouse, or behind a hanging or cupboard where a person passing cannot see, or in a shop where the windows are shut up(), or in the night time; for the sale ought to take place between the rising and going down of the sun (m).

A sale in market overt, it is said, does not bind the king; but the sale by a stranger binds an infant, or a feme covert, whether they possessed the property in their own right, or as executors or administrators; it also binds idiots and lunatics, and persons beyond sea, or in prison (n). The sale does not bind the real owner, if he happen to be the purchaser (o). So, though several sales have intervened, and the goods come again into the possession of the original trespasser, the owner is not barred, and may retake them (p).

Where there is covin on the part of the buyer, the sale is not binding; as, where no consideration for the goods has been given; or, where the parties collude in order to bar the rightful owner; or, where the buyer knows that the seller is not the

(k) See note (1).

(1) Ibid.; 2 Rol. Abr. 122, 1. 47-53; Dyer, 996, in marg. (m) 2 Inst. 714.

rightful possessor (g); or, where he knows that the seller is an infant, or a feme covert (unless in respect of goods which she trades with, for, and by the consent of, her husband (r)), or a bankrupt (s), or a factor (t); or, where the contract is not complete in the market overt, as where it is begun there, and finished elsewhere (u), or vice versa (x). Where no toll is payable, the sale in market overt binds without payment of toll (y). But if toll is not paid, where by custom it ought to be paid, it seems doubtful whether the sale would alter the property (z); for it is said, for this purpose were tolls established in markets, viz. to testify the making of contracts (a).

The pawning of goods does not alter the pro- Pawning of perty against the true owner (b). It is enacted, binding

(q) 2 Inst. 713; Clifton v. Chancellor, Moor, 624; Harvy v.

Facy, 2 Anderson, 115; Dr. & Stud. 256.

(r) 2 Inst. 713; 2 Bl. Comm. 450.

(s) Per Twysden, J., Baily v. Bunning, Sid. 272.

(t) Per Holt, C. J., 12 Mod. 515.

(u) 2 Inst. 714; 4 Taunt. 533.

(x) Com. Dig. Market, E.; Jones, 164; Anon., Dyer, 996, pl. 66; Frogmer's Case, ibid. in mar.

(y) 2 Inst. 714; Comyns v. Boyer, Cro. Eliz. 485.

(z) Ibid.; Jenkins, 83, pl. 62; Vin. Abr. Market, *A., 9; Bro. Abr. Property, pl. 9; Hodges v. Franklin, Hetley, 49. (a) Mirroir, ch. 1. sect. 3; 2 Bl. Comm. 449.

(b) Hartop v. Hoare, 2 Stra. 1187. It was said there could be no market overt for pawning, independently of 1 Jac. I. c. 21; ib. 1188. See S. C. 1 Wils. 8; 3 Atk. 44.

goods, not

against

owner.

that no sale, exchange, pawn, or mortgage, of any goods wrongfully taken or stolen, and which shall be at any time sold, delivered, exchanged, pawned or done away with, in the city or liberties of London, or within two miles thereof, or within Westminster or Southwark, to any broker or pawntaker, shall work any alteration of property (c). And it is provided, that, if the owner of goods, unlawfully pawned, make oath of the fact before a justice, and show that there is reason to suspect some particular person, the justice may grant a warrant for searching the house of such person, and he may cause the goods, if found, to be restored to the owner (d).

Therefore, where goods are pawned within the limits specified by the statute, the true owner may have his action for the goods, whether he prosecute the trespasser or not (e). In an action against a pawnbroker, where the plaintiff had prosecuted the party who had stolen and pawned the goods, but the prisoner had been acquitted of the felony on account of the absence of a material witness, it was held that the action well lay, and the plaintiff had a verdict (ƒ). It was formerly the established (c) 1 Jac. I. c. 21, s. 5.

(d) 39 & 40 Geo. III. c. 99, s. 13.

(e) Kelynge, 50; Plowd. 243.

(f) Packer v. Gillies, 2 Campb. 336, n. But if the owner held out the party pledging the goods as one authorized so to act, he can maintain no action against the pledgee; Garth v. Howard, 5 C. & P. 346.

factor.

doctrine, that, if a factor pledged the goods of his Pledge by principal, the latter might recover against the pawnee, on paying to the factor what was due to him, without making any tender to the pawnee (g). But by statute it is enacted, that the pledgee, even with notice, shall acquire the same right, title, and interest as the factor possessed (h). Therefore the principal, in order to redeem, would be bound to tender to the pledgee as much as was due at the time to the factor, but not more (i).

to the

common

law.

At common law, if a man whose goods were Restitution stolen freshly pursued his appeal against the felon, owner at and convicted him of the felony, he was entitled faw to restitution (k); and it seems that a sale in market overt by the king's officer, or any other party, would not in such case have changed the property (1). By a repealed statute (m) the right of restitution was further extended, and the owner was entitled to a writ of restitution for the goods and chattels stolen from him, if he himself, or any person by his procurement, gave evidence to convict the felon.

(g) Paterson v. Tash, 2 Str. 1178.-Post, TROVER by Vendor, Book II. Part 1, Chap. iv.

(h) 6 Geo. IV. c. 94, s. 5.—Post.

(i) See Fletcher v. Heath, 7 B. & C. 517.

(k) Com. Dig. Market, E.; 2 Inst. 714.

(1) Ibid.; 1 Hale, P. C. 542; 2 Hawk. P. C. ch. 23, S. 35. (m) 21 H. VIII. c. 11, repealed by 7 & 8 Geo. IV. c. 27.