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tution of the property against even a bond fide purchaser in market overt (r). Blackstone says ($), 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. But, although the owner is entitled to restitution, Against
upon conviction of the offender by his procure- may bring
. , . . , the action.
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.
(«) 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 (w) it was held that the owner was not entitled to restitution against a pawnee, or other bona 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.
Section II.—Of the Buying and Selling of Horses in Market Overt.
Selling of 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) Horwoodv. Smith, 2 T. R. 750.
(u) 21 H. VIII. c. 11.
(x) Parker v. Patrick, 5T.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(£).
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 (dy.
The statute 31 Eliz. c. 12, entitled " An Act to avoid Horse-stealing," makes further provisions
(a) Section 2. (c) Section 4.
(6) Section 3. (d) Section 5.
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 bona fide paid by the buyer (/).
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.
(/) Section 4.
had entered a wrong name in the toll-book, the property was not altered (A). So it is, where the person, vouching the seller, gives a fictitious name (*).
The statute extends to horses, wrongfully taken, which have not been stolen (&). When the plaintiff let a horse to hire to one, who kept it beyond the time stipulated, and then sold it to the defendant, it was held that the owner might recover against the defendant, though the latter was a bona fide purchaser for full value (/).
It has been decided, that an officer has no authority, by a warrant given upon the mere making of a complaint by the alleged owner before the magistrate, to take the horse out of the possession of a bona fide, purchaser; some ground must be laid for the jurisdiction of the magistrate in an actual felony (m). It was ruled by Best, C. J., that the plaintiff could not recover, upon proof of the property in the horse, unless he has done everything in his power to convict the felon; a mere
(A) Gibbs's case, Owen, 27; S. C. 1 Leon. 158; (though it had been ruled contra, Wickes v.Morefoot, Cro. Eliz. 86.) [The buyer, justifying under a sale in market overt, must show who was the vendor; Bro. Abr. Count, pl. 78.]
(i) Barker v. Reading, Sir W. Jones, 163; S. C. Palm. 485.
(k) Com. Dig. Market, E.; Burn's Justice, Tit. Horses; Barker v. Reading, Jones, 163.
(0 Shelley v. Ford, 5 C. & P. 313.
(m) Joseph v. Adkins, 2 Stark. N. P. C. 76.