« EdellinenJatka »
with the contract (7). And, with regard to goods under 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. Antiently, 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. 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 goods is transferred to the vendee, and that of the price to goods, the pro
is the vendor; but the vendee cannot take the goods, until he immediately tenders the price agreed on (2). But, if he tenders the the vendee, and money to the vendor, and he refuses it, the vendee may that of the price
to the vendor. seize the goods, or have an action against the vendor for detaining them. And by a regular sale, without delivery, (y) Stiernhook de jure Goth. I. 2, c. 5.
(z) Hob. 41.
(7) In the case of Rondeau v. Wyatt, T. R. 16), and by the whole court of (1 H. Bla. 66, s. C. 1 Br. 155), the King's Bench in Garbutt v. Watson, court of Common Pleas said, “ it is (1 Dowl. & Ryl. 221, s. C. 5 Barn. & singular that an idea could ever prevail Ald. 615), and in Baldey v. Parker, that this section of the statute was only (3 Dowl. & Ryl. 223, S. C. 2 Barn. & applicable to cases where the bargain Cress. 41). It is true that, where the was immediate; for it seems plain, from subject matter of a contract does not, the words made use of, that it was at the time, exist in rerum natura, and meant to regulate executory, as well as consequently is incapable of delivery other, contracts. And, indeed, this and of part acceptance, there the conprovision of the statute would not be of tract has sometimes been considered as much use unless it were to extend to not within the statute of frauds; (Groves executory contracts; for it is from bar- v. Buck, 3 Mau. & Sel. 179); but, in gains to be completed at a future pe- all the cases cited in this note, that riod that the uncertainty and confusion construction has been discountenanced, are most likely to arise, which the and at all events there seems no dispostatute was designed to prevent." sition in courts either of law or equity,
This construction was adopted by to extend it to cases which are not the Lord Kenyon in Cooper v. Elston, (7 same in specie with existing precedents.
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 [ *449 ] money, because, by the contract, the property was in the
vendee (a). Thus may property in goods be transferred by
sale, where the vendor hath such property in himself. Sales in market 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 (6), that all sales and contracts of any thing vendible, in fairs or markets overt (8), (that is, open), shall not only be good between
(8) Lord Hardwicke, in the case of If stolen goods are sold in market Lowthal v. Tonkins, (Barnard. Cha. overt, and afterwards, but before conCa. 42, S. C. 2 Eq. Ca. Ab. 381), said, viction of the felon, notice is given to “ before the statute of frauds, a defend- the purchaser by the right owner, that ant's goods were bound, in his hands, the goods are his property, notwithfrom the teste of the writ of execution, standing which the purchaser re-sells To avoid this, that statute was made; them; the right owner cannot, after whereby it is directed, that the goods conviction, recover from the first purshall only be bound from the delivery chaser, because the sale in market overt of the writ to the sheriff. But neither protected the goods until conviction, before the statute, nor since, is the and therefore the first purchaser was property of the goods altered, but con- at liberty to make a re-sale during the tinues in the defendant till the writ of protection, and was not bound to keep execution is executed. But then it may possession of the goods, when it was be asked, what is the meaning of those doubtful whether the felon would, or words of the statute, whereby it is said would not, be convicted : but, unquesthat the goods shall be bound from the tionably, if the re-sale had been made delivery of the writ to the sheriff? The after the protection had ceased, an acmeaning is, that, after the writ is so tion of trover might have been maindelivered to the sheriff, if the defend- tained against the first purchaser. (Horant makes an assignment of his goods, wood v. Smith, 2 T. R. 755. Featherunless in market overt, the sheriff may stonhaugh v. Johnston, 8 Taunt. 238 ; take them in execution.
and see the fourth volume of these
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 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 expressly provided Pawnbrokers. by statute 1 Jac. I. c. 21, that the sale of any goods wrongfully (9) 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 case bind him; though it Infants, femebinds infants, feme-coverts, idiots, or lunatics, and men coverts, &c.
[ *450 ] beyond sea or in prison; or if the goods be stolen from a
(c) C. 1, s. 3.
(d) LL. Ethel. 10.12. LL. Eadg. Wilk. 80.
(e) Cro. Jac. 68.
commentaries, p. 362. See, also, note (5 T. R. 175), it was held that, if goods 10, infra, and the further reference be obtained from A. by fraud, and there given).
pawned to B., without notice, and A. (9) But, it seems, the “ wrongful prosecute the offender to conviction, taking" must be felonious, not merely and get possession of the goods, B. may fraudulent; for, in Parker v. Patrick, maintain trover for them.
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)(10). 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 (11); if the sale 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
(h) Bacon's use of the law, 158. (i) 2 Inst. 713, 714. (k) Perk. s. 93.
(10) To encourage the prosecution any sale or agreement entered into by of offenders, it is enacted, by the 57th her, obligatory upon him. (Bоwyer v. section of the statute of 7 & 8 Geo. IV. Peake, 2 Freem. 215). A husband c. 29, that the owner of stolen pro- may be concluded by the receipt of his perty, prosecuting the thief or receiver wife, when he has been in the habit of to conviction, shall have restitution of permitting her to pay and receivé mohis property ; with an exception as to ney, (Seaborne v. Blackston, 2 Freem. securities, or negotiable instruments, 178), or by her admission of demands which have been transferred bona fide, in respect of a business which she has for a just and valuable consideration, been in the habit of conducting whenwithout any notice, or without any ever her husband was absent: (Clifford reasonable cause to suspect that the v. Burton, 1 Bingh. 200): for, a femesame had by any felony or misde- coverte may be the attorney of her meanor been stolen, taken, obtained, husband. (Crayker v. Parrett, 2 Freem. or converted. See note (8), supra; and 19). But, unless there is distinct evithe next paragraph of the text. dence of the husband's assent to his
(11) A feme coverte is not under a wife's carrying on business for her total disability to contract; (Stephenson separate use, the profits belong to the v. Hardy, 3 Wils. 390); by her hus- husband, and whatever she purchases band's permission she may engage in therewith must equally belong to him. trade, and his. tacit assent may render (Lamphir v. Creed, 8 Ves. 599).
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 purchasers bona 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 As to sales of the property is not easily altered by sale, without the express or markets. consent of the owner, and those are horses (m). For a purchaser 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 (12). 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 and sunset, in the public place used for such sales, and not in any private yard or stable; and afterwards brought by both the vendor and vendee to the book-keeper of such fair or market: that toll be paid, if any *be due; and if not, one [ *451 ] penny to the book-keeper, who shall enter down the price, colour, and marks of the horse, with the names, additions, and abode of the vendee and vendor; the latter being properly attested. Nor shall such sale take away the property of the owner, if within six months after the horse is stolen he puts in his claim before some magistrate, where the horse shall be found; and, within forty days more, proves such his property by the oath of two witnesses, and tenders to the person in possession such price as he bona fide paid for him in market overt. But, in case any one of the points before mentioned be not observed, such sale is utterly void; and the owner shall not lose his property, but at any
distance of time may seize or bring an action for his horse, wherever he happens to find him. (1) 2 Inst. 713.
(m) Ibid. 719.
(12) The 5th section of this statute prived of the benefit of clergy, has been of Eliz., which enacted, that all acces- repealed by the act of 7 & 8 Gco. 4, sories to horse-slcaling should be de