them did ordain, that all sales and contracts of any thing vendible in markets overt, should bind those who had a right: but, he adds, that the rule had many exceptions, and he proceeds to state the several exceptions, which show the precision and caution with which the sale was to be conducted so as to bind the property. It is the settled English law, that a sale out of the market overt, or not according to the usage and regulations of the market overt, will not change the property as against the real owner. Thus, we find, in the case of Wilkinson v. King, b that where the owner of goods had sent them to a wharf in the borough of Southwark, where goods of that sort were usually sold and the wharfinger, without any authority, sold the goods to a bona fide purchaser, this was considered not to be a sale in market overt so as to change the property, but a wrongful conversion, for the wharf was not a market overt; and the purchaser was held liable in trover to the true owner. So it is said to be a general rule that goods obtained by tort or criminal fraud, under color of a contract, may be taken by the vendor out of the hands of the purchaser, or even of a purchaser from the tortious vendee.c

It is understood, that the English custom of markets overt does not apply to this country; and the general principle applicable to the law of personal property

* 2 Blacks. Comm. 419.- Foxley's case, 5 Co. 109. a Peer v. Humphrey, 4 Nevill f. Manning, 430. S. C. 1 Harv. of Woll. Rep. 28. But a sale in market overt will not bar the original owner of stolen goods, if he prosecute the thief to conviction, and sue the person in whose possession they were at the time of the conviction. This is by the statute of 21 Hen. VIII. c. 11, and which was adopted in Virginia, in 1792. Harwood v. Smith, 2 Term Rep. 750. Peer v. Humphrey, ub. sup. Coke's, 2 Inst. 714. Burgess v. Coney, Trem. P. C. 315. But trover will lie against the innocent purchaser of stolen goods, although no steps have been taken to prosecute the thief to conviction. White v. Spettigue, 13 Meeson of Welsby, 603. S. C. 1 Carr & Kirwan, 673. » 2 Campb. N. P. 335.

Long on Sales by Rand, p. 167, 168.

throughout civilized Europe is, that nemo plus juris in alium transferre potest quam ipse habet. This is a maxim of the common and of the civil law;a and a sale ex di termini, imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor. It has been frequently held in this country,b that the English law of markets overt *had not been adopt- *325 ed; and consequently, as a general rule, the title of the true owner cannot be lost without his own free act and consent. How far that consent, or a due authority to sell, is to be inferred, in many cases, for the encouragement and safety of commerce, may be discussed in our future inquiries. A radical defect of title in the

Co. Litt. 309. Dig. 41. 1. 20. Pothier Traité du Contrat de Vente, 1. n. 7. Ersk. Inst. 418. 1 Bell's Com. 281.

Dame v. Baldwin, 8 Mass. Rep. 518. Wheelwright v. DePeyster, 1 Johns Rep. 480. Hosack v. Weaver, 1 Yeates' Rep. 478. Easton v. Worthington, 5 Serg. 8. Rawle, 130. Browning v. Magill, 2 Harr. of Johns. 308. M‘Grew v. Browder, 14 Martin's Louis. Rep. 17. Roland v. Gandy, 5 Hammond's O. Rep. 202. Lance v. Cowen, 1 Dana's Ken. Rep. 195. Ventress v. Smith, 10 Peters' U. S. Rep. 161. Hoffman v. Cowen, 22 Wendell's Rep 285. In that case it was adjudged in the court of errors, that an auctioneer who sold stolen goods was liable to the owner in trover, though the goods were sold by him and the proceeds paid over to the thief without notice of the felony. It was declared by statute in Pennsylvania, in 1780, that no sale of a stolen horse should operate to change the property. This was before it was settled that we had no markets overt in this country in the sense of the English common law. In Scotland, the true owner may reclaim his property, even from the bona fide purchaser in market overt. Bell's Princip. sec. 527.

• The doctrine that possession carries with it the evidence of property, so as to protect a person acquiring property in the usual course of trade, is said to be limited to cash, bank bills, and bills and checks payable to bearer, Saltus v. Everett, 20 Wendell, 267. By statute 6 Gco. IV. c. 94, the consignee of goods from the shipper, is entitled to a lien in respect to money or negotiable securities advanced for the shipper, without notice that the shipper was not the bona fide owner. And any person intrusted with a bill of lading, or order for the delivery of goods, was to be deemed the true owner of the goods, so far as to give validity to any sale, or disposition thereof by deposit or pledge, if the buyer or pawnee had not notice that such person was not the true owner. So, any person taking goods on deposit or pledge for a pre-existing debt from the party in possession, with

possessor is, by the general jurisprudence of Europe, available to the true owner against creditors and purchasers; and there is such a defect, when the person from whom the property was acquired was incapable of consent, or when the thing had been stolen, or obtained by violence. The true owner, in those cases, may vindicate his title. If goods be stolen, no title passes from the felon to the bona fide purchaser. But this is not the place to

out notice that he was not the owner, acquires the right that was in tho person making the deposit or pledge. Any person may accept goods on any such document on deposit or pledge from any factor or agent, with knowledge that he was a factor or agent, and he will acquire the title or interest of the factor or agent. And any person may contract for the purchase of goods from any factor, agent or consignee in possession thereof, and make payment thereof with knowledge of such agency, provided the contract be made in the usual course of business, and without notice of any want of authority in the agent to sell and receive payment. The true owner, prior to the sale or pledge, may recover from the factor or agent, or his assignees, and from the buyer, the price of the goods subject to his right of set-off against the agent, and may recover the goods deposited or pledged on re-payment of the money or restoration of the negotiable paper advanced on security thereof, and on payment of the money or restoration of the negotiable paper advanced by the factor or agent. So, he may recover from any person any balance in hand being the produce of the sale of the goods, after deducting the money or negotiable paper advanced on the security thereof.

• Fraud and breaches of trust are said not to be among the radical defects which will absolutely annul the title of the subsequent bona fide purchaser; and Mr. Brown has, though I think mistakingly, contended, that cases of force and fear stand on the same footing, for I apprehend that force and fear will destroy the contract entirely. Brown on Sales, 395. 1 Bell's Com. 281, 286, 287, 289. Mr. Bell shows, from the cases which he cites, that it is not clearly settled in what cases a sale by a person in lawful possession will bind the real owner, if the sale be founded on a breach of trust. Vide infra, p. 514, note. If a bailee of property for a special purpose sells it, the bona fide purchaser does not acquire a valid title. Wilkinson v. King, 2 Campb. Rep. 335. Hartop v. Hoare, 3 Atk. 44. Hardman v. Wilcock, 9 Bingham, 382, note. Galvin v. Bacon, 2 Fair. field, 28. Story on Bailments, p. 79, 2d edit. But if the vendor delivers goods with the intention that the property as well as the possession shall pass, a bona fide purchaser from a fraudulent vendee will hold the goods. Andrew v. Dietrich, 14 Wendell, 31. It is sufficient for the purpose of

pursue further this inquiry. My object, at present, is only to show how the right of the true owner to property kept increasing in consideration and vigour, with the progress of law from rudeness to refinement.

Title to property, resting originally in occupancy, ceased, of course, upon the death of the occupant. Sir William Blackstone considers the descent, devise, and transfer of property, political institutions and creatures of the municipal law, and not natural rights; and that the law of nature suggests, that on the death of the possessor, the estate should become common, and be open to the next occupant. He admits, however, that, for the sake of peace and order, the universal law of almost every nation gives to the possessor the power to continue his property by will; and if it be not disposed of in that way, that the municipal law steps *in and *326 declares who shall be heir of the deceased. As a mere speculative question, it may be doubted, whether this be a perfectly correct view of the law of nature on this subject. The right to transmit property by descent, to one's own offspring, is dictated by the voice of nature.b The universality of the sense of a rule or obligation, is pretty good evidence that it has its foundation in natural law. It is in accordance with the sympathies and reason of all mankind, that the children of the owner of property, which he acquired and improved by his skill and industry, and by their association and

protecting a bona fide purchaser, that the owner of personal property confers an apparent right of property upon the vendor, as when he sells goods and delivers possession, although the goods were obtained from him fraudulently; and he confers an apparent right of disposal, when he furnishes the vendor with the external indicia of such right, or where a bill of lading is sent to a consignee with a power of transfer. Saltus v. Everett, 20 Wendell, 267. • Com. vol. ü. ch. 1.10-13.

Grotius, b. 2. ch. 7. sec. 5. • Omni in re consensio omnium gentium lex naturæ putanda est. Cic. Tuscul. Quæst. lib. 1. ch. 13.

labour, should have a better title to it at his death, than the passing stranger. It is a continuation of the former occupancy in the members of the same family. This better title of the children has been recognized in every age and nation, and it is founded in the natural affections, which are the growth of the domestic ties, and the order of Providence. But the particular distribution among the heirs of the blood, and the regulation and extent of the degrees of consanguinity, to which the right of succession should be attached, do undoubtedly depend upon positive institution ; and it seems to be the general doctrine, founded on the history of all nations and ages, that property in land, when such property began to exist and to be recognized, was originally vested in the state or sovereign, and derived by grant to individuals.b

The power of alienation of property is a necessary incident to the right of property, and was dictated by mutual convenience, and mutual wants. It was first applied to moveables ; and a notion of separate and permanent property in land could not have arisen until men had advanced beyond the hunter and shepherd states, and become husbandmen and farmers. Property in land

would naturally take a faster hold of the affections ; *327 and, from the very nature of the subject, it would *not

be susceptible of easy transfer, nor so soon as moveable property be called into action as an article of commerce.

Delivery of possession, was, anciently, necessary to the valid transfer of land. When actual delivery became inconvenient, symbolical delivery supplied its place; and as society grew in cultivation and refinement, writing was introduced, and the alienation of land was by deed.

The gratuitous disposition of land by will, was of much slower growth than alienations, in the way of commerce,

Christian's notes to 2 Blacks. Com. 1. Taylor's Elements of the Civil Law. 519. Toullier, Drvit Civil Francaise, tom. 3, p. 121–128.

o Grotius, b. 2. ch. 2 sec. 4. Ibid. ch. 3. sec. 4.

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