[ *448 ]

Statute of frauds.

tendered by the other side. But, if neither the money be paid, nor the goods delivered, nor tender made, nor any subsequent agreement be entered into, it is no contract, and the owner may dispose of the goods as he pleases (u). But, if any part of the price is paid down, if it be but a penny, or any portion of the goods delivered by way of earnest, (which the civil law calls arrha, and interprets to be "emptionis-venditionis * contractæ argumentum" (w),) the property of the goods is absolutely bound by it: and the vendee may recover the goods by action, as well as the vendor may the price of them (x) (13). And such regard does the law pay to earnest as an evidence of a contract, that, by the same statute, 29 Car. II. c. 3, no contract for the sale of goods, to the value of 101. or more, shall be valid, unless the buyer actually receives part of the goods sold, by way of earnest on his part: or unless he gives part of the price to the vendor by way of earnest to bind the bargain, or in part of payment; or unless some note in writing be made and signed by the party, or his agent, who is to be charged with the contract (14). And, with regard to goods under (w) Inst. 3, tit. 24.

(u) Hob. 41; Noy's Max. c. 42.

(x) Noy, ibid.

(13) Mr. Christian observes, that "the property does not seem to be absolutely bound by the earnest; for Lord Holt has laid down the following rules, viz. that, notwithstanding the

earnest, the money must be paid * upon fetching away the goods, because no other time for payment is appointed; that earnest only binds the bargain, and gives the party a ' right to demand; but then a demand 'without the payment of the money

is void; that, after earnest given, 'the vendor cannot sell the goods to another, without a default in the vendee; and, therefore, if the vendee does not come and pay, and take the goods, the vendor ought to 4 go and request him; and then, if 'he does not come and pay, and take

is at liberty to sell them to any ' other person.' (1 Salk. 113.)”. [The qualified sense in which our author intended to be understood, when he said that "the property of goods is absolutely bound by the payment of part of the price, by way of earnest," is made clear enough by the next paragraph of the text.— ED.]

(14) In the case of Rondeau v. Wyatt, (1 H. Bla. 66; S. C. 1 Br. 155,) the court of Common Pleas said, "it is singular that an idea could ever prevail that this section of the statute was only applicable to cases where the bargain was immediate ; for it seems plain, from the words made use of, that it was meant to regulate executory, as well as other, contracts. And, indeed, this provision of the statute would not be of

the value of 10l., no contract or agreement for the sale of
them shall be valid, unless the goods are to be delivered
within one year, or unless the contract be made in writing,
and signed by the party, or his agent, who is to be charged
therewith. Anciently, among all the northern nations,
shaking of hands was held necessary to bind the bargain; a
custom which we still retain in many verbal contracts.
sale thus made was called handsale " venditio
per mutuam
manuum complexionem" (y); till in process of time the same
word was used to signify the price or earnest, which was
given immediately after the shaking of hands, or instead
thereof.

A

On a sale of perty of them is

goods, the pro

immediately

the vendee, and

that of the price

to the vendor.

As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods, until he transferred to tenders the price agreed on (z). But, if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A. sells a horse to B. for 107. and B. pays him earnest, or signs a note in writing of the bargain; and afterwards, before the delivery of the horse or money paid, the horse dies in the vendor's custody; still he is entitled to the money, because, by the *contract, the property was in the [449] vendee (a). Thus may property in goods be transferred by sale, where the vendor hath such property in himself.

(y) Stiernhook de jure Goth. 1. 2, c. 5.

much use unless it were to extend to executory contracts; for it is from bargains to be completed at a future period that the uncertainty and confusion are most likely to arise, which the statute was designed to prevent."

This construction was adopted by Lord Kenyon in Cooper v. Elston, (7 T. R. 16,) and by the whole court of King's Bench in Garbutt v. Watson, (1 Dowl. & Ryl. 221; S. C. 5 Barn. & Ald. 615,) and in Baldey v. Parker. (3 Dowl. & Ryl. 223; S. C. 2 Barn. & Cress. 41.) It is true that, where the

(2) Hob. 41.

(a) Noy, c. 42.

subject matter of a contract does not,
at the time, exist in rerum naturá, and
consequently is incapable of delivery
and of part acceptance, there the con-
tract has sometimes been considered
as not within the statute of frauds;
(Groves v. Buck, 3 Mau. & Sel. 179;)
but, in all the cases cited in this note,
that construction has been discoun-
tenanced, and at all events there
seems no disposition in courts either
of law or equity, to extend it to cases
which are not the same in specie with
existing precedents.

Sales in market overt.

But property may also in some cases be transferred by sale, though the vendor hath none at all in the goods: for it is expedient that the buyer, by taking proper precautions, may at all events be secure of his purchase; otherwise all commerce between man and man must soon be at an end. And therefore the general rule of law is (b), that all sales and contracts of any thing vendible, in fairs or markets overt (15), (that is, open,) shall not only be good between the parties, but also be binding on all those that have any right or property therein. And for this purpose, the mirroir informs us (c), were tolls established in markets, viz. to testify the making of contracts; for every private contract was discountenanced by law: insomuch, that our Saxon ancestors prohibited the sale of any thing above the value of twenty pence, unless in open market, and directed every bargain and sale to be contracted in the presence of credible witnesses (d). Market overt in the country is only

(b) 2 Inst. 713.

(c) C. 1, s. 3.

(15) Lord Hardwicke, in the case of Lowthal v. Tonkins, (Barnard. Cha. Ca. 42; S. C. 2 Eq. Ca. Ab. 381,) said, "before the statute of frauds, a defendant's goods were bound, in his hands, from the teste of the writ of execution. To avoid this, that statute was made; whereby it is directed, that the goods shall only be bound from the delivery of the writ to the sheriff. But neither before the statute, nor since, is the property of the goods altered, but continues in the defendant till the writ of execution is executed. But then it may be asked, what is the meaning of those words of the statute, whereby it is said that the goods shall be bound from the delivery of the writ to the sheriff? The meaning is, that, after the writ is so delivered to the sheriff, if the defendant makes an assignment of his goods, unless in market overt, the sheriff may take them in execution.

If stolen goods are sold in market overt, and afterwards, but before con

(d) LL. Ethel. 10, 12; LL. Eadg. Wilk. 80.

viction of the felon, notice is given to the purchaser by the right owner, that the goods are his property, notwithstanding which the purchaser resells them; the right owner cannot, after conviction, recover from the first purchaser, because the sale in market overt protected the goods until conviction, and therefore the first purchaser was at liberty to make a re-sale during the protection, and was not bound to keep possession of the goods, when it was doubtful whether the felon would, or would not, be convicted: but, unquestionably, if the re-sale had been made after the protection had ceased, an action of trover might have been maintained against the first purchaser. (Horwood v. Smith, 2T. R. 755; Featherstonhaugh v. Johnston, 8 Taunt. 238; and see the fourth volume of these commentaries, p. 363. See, also, the next note but one, infra, and the further reference there given.)

:

held on the special days provided for particular towns by charter or prescription; but in London every day, except Sunday, is market day (e). The market place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market overt (f); but in London every shop in which goods are exposed publicly to sale, is market overt, for such things only as the owner professes to trade in (g). But if my goods are stolen from me, and sold, out of market overt, my property is not altered, and I may take them wherever I find them. And it is Pawnbrokers. expressly provided by statute 1 Jac. I. c. 21, that the sale of any goods wrongfully (16) taken, to any pawnbroker in London, or within two miles thereof, shall not alter the property for this, being usually a clandestine trade, is therefore made an exception to the general rule. And, even in market overt, if the goods be the property of the king, such sale (though regular in all other respects) will in no [*450 ] case bind him; though it binds infants, feme-coverts, idiots, Infants, femeor lunatics, and men beyond sea or in prison; or if the goods be stolen from a common person, and then taken by the king's officer from the felon, and sold in open market; still, if the owner has used due diligence in prosecuting the thief to conviction, he loses not his property in the goods (h)(17). So likewise, if the buyer knoweth the property not to be in the seller; or there be any other fraud in the transaction; if he knoweth the seller to be an infant, or feme-covert not usually trading for herself (18); if the sale

(e) Cro. Jac. 68.

Godb. 131.

(16) But, it seems, the "wrongful taking" must be felonious, not merely fraudulent; for, in Parker v. Patrick, (5 T. R. 175,) it was held, that if goods be obtained from A. by fraud, and pawned to B., without notice, and A. prosecute the offender to conviction, and get possession of the goods, B. may maintain trover for them.

(17) To encourage the prosecution of offenders, it is enacted, by the 57th section of the statute of 7 & 8 Geo. IV. c. 29, that the owner of stolen pro

(g) 5 Rep. 83; 12 Mod. 521.

(h) Bacon's Use of the Law, 158.

perty, prosecuting the thief or receiver
to conviction, shall have restitution of
his property; with an exception as to
securities, or negotiable instruments,
which have been transferred bond fide,
for a just and valuable consideration,
without any notice, or without any
reasonable cause to suspect that the
same had by any felony or misde-
meanor been stolen, taken, obtained,
or converted. See the first note to:
p. 449, and the next paragraph of the
text.

(18) A feme coverte is not under a

coverts, &c.

As to sales of horses in fairs or markets.

be not originally and wholly made in the fair or market, or not at the usual hours; the owner's property is not bound thereby (i). If a man buys his own goods in a fair or market, the contract of sale shall not bind him, so that he shall render the price : unless the property had been previously altered by a former sale (k). And, notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, comes again into possession of the goods, the original owner may take them, when found in his hands who was guilty of the first breach of justice (1). By which wise regulations the common law has secured the right of the proprietor in personal chattels from being devested, so far as was consistent with that other necessary policy, that purchasors bonâ fide, in a fair, open, and regular manner, should not be afterwards put to difficulties by reason of the previous knavery of the seller.

But there is one species of personal chattels, in which the property is not easily altered by sale, without the express consent.of the owner, and those are horses (m). For a purchasor gains no property in a horse that has been stolen, unless it be bought in a fair or market overt, according to the directions of the statutes 2 P. & M. c. 7, and 31 Eliz. c. 12 (19). By which it is enacted, that the horse shall be openly exposed, in the time of such fair or market, for one whole hour together, between ten in the morning

(i) 2 Inst. 713, 714.

(k) Perk. s. 93.

total disability to contract; (Stephen-
son v. Hardy, 3 Wils. 390;) by her
husband's permission she may engage
in trade, and his tacit assent may
render any sale or agreement entered
into by her, obligatory upon him.
(Bowyer v. Peake, 2 Freem. 215.) A
husband may be concluded by the
receipt of his wife, when he has been
in the habit of permitting her to
pay and receive money, (Seaborne v.
Blackston, 2 Freem. 178,) or by her
admission of demands in respect of a
business which she has been in the habit
of conducting whenever her husband
was absent: (Clifford v. Burton, 1

(7) 2 Inst. 713.

(m) Ibid. 719.

Bingh. 200; S. C. 8 Moore, 16:) for, a feme coverte may be the attorney of her husband. (Crayker v. Parrett, 2 Freem. 19.) But, unless there is distinct evidence of the husband's assent to his wife's carrying on business for her separate use, the profits belong to the husband, and whatever she purchases therewith must equally belong to him. (Lamphir v. Creed, 8 Ves. 599.)

(19) The 5th section of this statute of Eliz., which enacted, that all accessories to horse-stealing should be deprived of the benefit of clergy, has been repealed by the act of 7 & 8 Geo. IV. c. 27.