By statute.' Owner's remedy. Even after a sale in market overt. A recent statute contains provisions similar to the above, but more extensive. It is enacted, that the owner shall have the stolen property restored to him, upon the prosecution and conviction of the offender by or on behalf of the owner; except where the property stolen consists of valuable securities, which have been bona fide discharged, or negotiable instruments, for which a valuable consideration has been paid by any third party without notice (n). The remedy given by the latter statute for the recovery of the stolen property, after the conviction of the offender, is a writ of restitution, and the Court is empowered to order the restitution in a summary manner. The repealed statute also gave a writ of restitution. But this writ was not used in practice (o); and if the goods be not restored upon conviction, the owner may maintain trover for them (p). Even where they are not the identical goods, but the produce of them, the action will lie (q). It seems clear that, under the statute, the owner upon conviction of the offender shall have resti (n) 7 & 8 Geo. IV. c. 29, s. 57. (o) See per Lord Mansfield, C. J., Lofft, 90. No writ of restitution had been sued out for two centuries; Bac. Abr. Fairs, E. 10. The form of the writ is given, Lofft, 91. (p) Golightly v. Reynolds, Lofft, 88. (q) Ib.; Harris's case, Noy, 128; Holiday v. Hicks, Cro. Eliz. 661; Hanberrie's case, cited ibid. See 4 Nev. & Man. 430. tution of the property against even a bonâ fide purchaser in market overt (r). Blackstone says (s), though this may seem somewhat hard upon 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 action by pursuing the felon to condign punishment, to the right of the buyer, whose only merit is negative, that he has been guilty of no unfair transaction. whom he the action. But, although the owner is entitled to restitution, Against upon conviction of the offender by his procure- may bring ment, the action can be sustained only against the party in possession of the goods at the time of the attainder. Where the defendant had purchased the goods from the felon in market overt, and sold them again before the conviction, although notice of the robbery had been given to him by the plaintiff, the Court gave judgment for the defen (r) 2 Inst. 714; Com. Dig. Market, E.; 1 Hale, P. C. 543; Kelynge, 35, 48; Bac. Abr. Fairs, E. 10; Vin. Abr. Restitution, C. 12 (note); 3 Chit. Burn, Larceny, VI. ; 2 T. R. 755. (6) 4 Comm. ch. 27. [It has been decided, in a very recent case, that he might recover against the defendant, who purchased the goods from the felon by private sale, although the defendant had afterwards resold them to a third party in market overt; Peer v. Humphrey, 4 Nev. & M. 430.] dant. (t) Under the former statute (u) it was held that the owner was not entitled to restitution against a pawnee, or other bonâ fide party, paying valuable consideration for goods, if such goods had been obtained by the wrong-doer through fraud, or by any other means not amounting to felony; because the words of the statute confined it to the case of felony (x). But it seems that the objection would not now be applicable, since the words of the present statute (y) are, "any such felony or misdemeanor as aforesaid," &c.; and a previous section (2) relates to the very case of obtaining goods under false pretences. Selling of horses. SECTION II. Of the Buying and Selling of Horses in Market Overt. With the view of checking the crime of horsestealing, and of securing the property of owners of horses, certain statutes have provided, that the sale, by a wrongful possessor, even in market overt, shall not have the effect of altering the property (t) Horwood v. Smith, 2 T. R. 750. (u) 21 H. VIII. c. 11. (x) Parker v. Patrick, 5 T. R. 175. See 6 Taunt. 13; Davis v. Morrison, Lofft, 185; 2 Wm.'s Saund. Rep. 47, e. (y) 7 & 8 Geo. IV. c. 29, s. 57. (z) Id. sect. 53; reciting, that "a failure of justice frequently arises from the subtle distinction between larceny and fraud." in a horse, unless certain prescribed forms have been duly complied with. The statute 2 & 3 Phil, & M. c. 7, entitled "An Act against the Buying of Stolen Horses," directs, that in every fair and market a certain open space shall be appointed and limited out for the selling of horses. And that a toll-gatherer shall be appointed for taking, between the hours of ten in the morning and sunset, due and lawful toll for every horse there sold; and he shall write down in a book, kept for the purpose, the description of the horse, and the names and abodes of the parties to the contract (a); which book shall be delivered to the chief keeper of the fair or market, who is to make a note of the number of horses sold (b). It is further enacted, that the property in a stolen horse shall not be changed by the sale, made according to such prescribed regulations, unless the horse shall have been openly used, for the space of an hour at the least, in the open space of the said fair or market, where horses are usually sold (c). If the provisions of the statute have not been complied with, the owner of a stolen horse may retake, or have an action for the recovery of, the same (d). The statute 31 Eliz. c. 12, entitled "An Act to avoid Horse-stealing," makes further provisions (a) Section 2. (c) Section 4. concerning the sale of horses, in protection of owners, reciting, that sundry good ordinances, theretofore made," had not wrought so good "effect for the repressing or avoiding of horse"stealing, as was expected." It enacts, that the toll-taker, or chief officer of the fair or market, shall not make an entry of the sale of any horse, unless he will take upon himself perfect knowledge of the seller, or unless some sufficient and creditable person will avouch the seller, and declare of his own knowledge the seller's name, occupation, and residence. And it further provides, that the toll-taker shall enter in his book the price of the horse, and shall furnish a note in writing of the transaction to the buyer (e). Notwithstanding that the prescribed formalities shall have been adopted, it is provided, that the owner of a stolen horse may make claim within six months after the sale, and, upon sufficient proof of his property within forty days after claim, may redeem the horse upon payment, or tender of payment, of the sum bonâ fide paid by the buyer(ƒ). If in the sale of a stolen horse the requisites of these statutes have not been duly observed, the sale is utterly void as regards the owner, and he may retake the horse at any distance of time (g). Therefore, it was decided that, where the vendor (e) Section 2. (g) 2 Bl. Comm. 451. |