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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 [ * 448 ] 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

Statute of frauds.

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(w) Inst. 3, tit. 24.

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

(20) Noy, ibid.


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(13) Mr. Christian observes, that * is at liberty to sell them to any " the property does not seem to be other person.” (1 Salk. 113.)”'absolutely bound by the earnest; for [The qualified sense in which our Lord Holt has laid down the following author intended to be understood, rules, viz. 'that, notwithstanding the when he said that “the property of

earnest, the money must be paid goods is absolutely bound by the payupon fetching away the goods, be- ment of part of the price, by way of cause no other time for payment is earnest,” is made clear enough by appointed; that earnest only binds the next paragraph of the text.• the bargain, and gives the party a Ed.]

right to demand ; but then a demand (14) In the case of Rondeau v.

without the payment of the money Wyatt, (1 H. Bla. 66 ; S. C. 1 Br. * is void ; that, after earnest given, 155,) the court of Common Pleas said, • the vendor cannot sell the goods to “ it is singular that an idea could * another, without a default in the ever prevail that this section of the • vendee ; and, therefore, if the ven- statute was only applicable to cases • dee does not come and pay, and where the bargain was immediate ; "take the goods, the vendor ought to for it seems plain, from the words * go and request him ; and then, if made use of, that it was meant to re• he does not come and pay, and take gulate executory, as well as other,

away the goods in convenient time, contracts. And, indeed, this provi'the agreement is dissolved, and he sion of the statute would not be of

the value of 101., 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, sbaking of hands was held necessary to bind the bargain; a custom which we still retain in many verbal contracts. A 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. As soon as the bargain is struck, the property of the On a sale of

goods, the pro. goods is transferred to the vendee, and that of the price to perty of them the vendor; but the vendee cannot take the goods, until he transferred to

the vendee, and tenders the price agreed on (2). But, if he tenders the that of the price

to the vendor. 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 101. 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.



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much use unless it were to extend to subject matter of a contract does not, executory contracts; for it is from at the time, exist in rerum naturá, and bargains to be completed at a future consequently is incapable of delivery period that the uncertainty and con- and of part acceptance, there the confusion are most likely to arise, which tract has sometimes been considered the statute was designed to prevent.” as not within the statute of frauds ;

This construction was adopted by (Groves v. Buck, 3 Mau. & Sel. 179;) Lord Kenyon in Cooper v. Elston, but, in all the cases cited in this note, (7 T. R. 16,) and by the whole court that construction has been discounof King's Bench in Garbutt v.Watson, tenanced, and at all events there (1 Dowl. & Ryl. 221; S. C. 5 Barn. & seems no disposition in courts either Ald. 615,) and in Baldey v. Parker. of law or equity, to extend it to cases (3 Dowl. & Ryl. 223; S. C. 2 Barn. & which are not the same in specie with Cress. 41.) It is true that, where the 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 ocert (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

(6) 2 Inst. 713.
(c) C. 1, s. 3.

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

(15) Lord Hardwicke, in the case viction of the felon, notice is given to of Lowthal v. Tonkins, (Barnard. Cha. the purchaser by the right owner, Ca. 42; S. C. 2 Eq. Ca. Ab. 381,) said, that the goods are his property, not“ before the statute of frauds, a de- withstanding which the purchaser refendant's goods were bound, in his sells them ; the right owner cannot, hands, from the teste of the writ of after conviction, recover from the first execution. To avoid this, that sta- purchaser, because the sale in market tute was made; whereby it is directed, overt protected the goods until conthat the goods shall only be bound viction, and therefore the first purfrom the delivery of the writ to the chaser was at liberty to make a re-sale sheriff. But neither before the sta- during the protection, and was not tute, nor since, is the property of the bound to keep possession of the goods altered, but continues in the goods, when it was doubtful whether defendant till the writ of execution is the felon would, or would not, be executed. But then it may be asked, convicted : but, unquestionably, if the what is the meaning of those words of re-sale had been made after the prothe statute, whereby it is said that tection had ceased, an action of the goods shall be bound from the trover might have been maintained delivery of the writ to the sheriff ? against the first purchaser. (Horwood The meaning is, that, after the writ v. Smith, 2 T. R. 755; Featherston. is so delivered to the sheriff, if the haugh v. Johnston, 8 Taunt. 238 ; defendant makes an assignment of and see the fourth volume of these his goods, unless in market overt, the commentaries, p. 363. See, also, the sheriff may take them in execution. next note but one, infra, and the fura

If stolen goods are sold in market ther reference there given.) overt, and afterwards, but before con

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


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

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(16) But, it seems, the "wrongful perty, prosecuting the thief or receiver taking” must be felonious, not merely to conviction, shall have restitution of fraudulent; for, in Parker v. Patrick, his property; with an exception as to (5 T. R. 175,) it was held, that if securities, or negotiable instruments, goods be obtained from A. by fraud, which have been transferred bona fide, and pawned to B., without notice, for a just and valuable consideration, and A. prosecute the offender to con- without any notice, or without any viction, and get possession of the reasonable cause to suspect that the goods, B. may maintain trover for same had by any felony or misdethem.

meanor been stolen, taken, obtained, (17) To encourage the prosecution or converted. See the first note to of offenders, it is enacted, by the 57th p. 449, and the next paragraph of the section of the statute of 7 & 8 Geo. IV.

text. c. 29, that the owner of stolen - proa (18) A feme coverte is not under a

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(l). 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

As to sales of horses in fairs or markets.


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total disability to contract; (Stephen- Bingh. 200; S. C. 8 Moore, 16:) for, son v. Hardy, 3 Wils. 390 ;) by her a feme coverte may be the attorney of husband's permission she may engage

her husband. (Crayker v. Parrett, 2 in trade, and his tacit assent may Freem. 19.) But, unless there is disrender any sale or agreement entered tinct evidence ofthe husband's assent to into by her, obligatory upon him. his wife's carrying on business for her (Bоwyer v. Peake, 2 Freem. 215.) A separate use, the profits belong to the husband may be concluded by the husband, and whatever she purchases receipt of his wife, when he has been therewith must equally belong to him. in the habit of permitting her to (Lamphir v. Creed, 8 Ves. 599.) pay and receive money, (Seaborne v. (19) The 5th section of this statute Blackston, 2 Freem. 178,) or by her of Eliz., which enacted, that all accesadmission of demands in respect of a sories to horse-stealing should be debusiness which she has been in the habit prived of the benefitof clergy, has been of conducting whenever her husband repealed by the act of 7 & 8 Geo. IV. was absent: (Clifford v. Burton, 1

c. 27.

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