implied. And the wife cannot assert her equity to a settlement without taking the serious step of making an application to the Court of Chancery. The theory of that court certainly is, that its assistance is free and open to everybody, and that those who neglect to avail themselves of its aid suffer by their own fault. Experience however is too apt to suggest that the remedy may sometimes prove worse than the disease.

PART V.

OF TITLE.

Money and negotiable secu

rities.

THE title to personal estate varies according as it may consist of money or negotiable securities, or of ordinary choses in possession, or of choses in action.

And first, with regard to money or negotiable securities, no title at all is required to be shown by the payer in any bonâ fide transaction. Thus if a sovereign or a bank note be offered in payment of a debt, it is no part of the duty of the creditor, under ordinary circumstances, to ask the debtor how he came by it. The reason of this rule is founded on the currency of the articles in question, and on the great inconvenience to trade and commerce which would ensue if the rule were otherwise (a). And the rule applies to all negotiable securities, that is, to all instruments the delivery of which passes the legal right to the property secured by them. Promissory notes and bills of exchange payable to bearer, or payable to order and indorsed in blank, are accordingly within the rule (b). But if there be any mala fides on the part of the person receiving any money or negotiable security, or such gross negligence as may amount in itself to evidence of mala fides, the true owner may recover such property, provided its identity can be ascertained (c).

(a) Miller v. Race, 1 Burr. 452; 1 Smith's Leading Cas. 250. (b) Grant v. Vaughan, 3 Burr. 1516; Peacock v. Rhodes, 2 Doug. 333; see ante, p. 72.

(c) Clarke v. Shee, Cowp. 197; Foster v. Pearson, 1 C. M. & R. 849; S. C. 5 Tyrw. 255; Goodman v. Harvey, 4 Ad. & El. 870.

in market overt.

With regard to ordinary choses in possession, a valid Sale of chattels title to them is generally obtained by a purchase in an open market, or market overt, although no property may have been possessed by the vendor (d). And every shop in the city of London, where goods are openly sold, is considered as a market overt within this rule, for such things as by the trade of the owner are put there for sale (e). But the shops at the west end of the town do not appear to possess this privilege. If the sale is not made in market overt, the purchaser, though he purchase bonâ fide, acquires no further property in the article sold than was possessed by the vendor (ƒ). If therefore a writ of execution should be actually in the hands of the sheriff on a judgment against the vendor, the goods, if not sold in market over, will be subject, in the hands of the purchaser, to the sheriff's right to seize, in the same manner as if they had remained in the hands of the vendor (g). So if the goods have been Stolen goods. stolen, a bonâ fide purchaser, who has not bought them in market overt, will be bound to restore them to the true owner (h); whereas, in either of the above cases, a sale in market overt would have given the purchaser a valid title. There is one case, however, in which even a sale in market overt will not protect a purchaser, namely, the case of the goods having been stolen, and the true owner prosecuting the thief and obtaining his conviction. In this case the property in the goods, wherever they may be, vests, on the conviction, in the true owner; and the only exception allowed is, where the article stolen is some valuable security, which shall have been paid or discharged bonâ fide by the person

(d) 2 Black. Com. 449.

(e) The case of Market Overt, 5 Rep. 83b; Lyons v. De Pass, 11 Ad. & El. 326.

(ƒ) Peer v. Humphrey, 2 Ad.

& El. 495; White v. Spettigue, 13
Mee. & W. 603.

(g) Samuel v. Duke, 3 Mee. &
W. 622; see ante, p. 46.

(h) White v. Spettigue, 13 Mee. & W. 603.

Horses.

Factors and agents.

Power of attorney.

liable, or, being a negotiable instrument, shall have been bonâ fide transferred or delivered for a just and valuable consideration, without any notice, and without any reasonable cause to suspect that the same had been obtained by any felony or misdemeanor (i). If a person suffer the loss of his goods by theft, he cannot by any civil action recover them from the felon (k). To do this, he is bound to suffer the further loss of time or money incurred in a prosecution. If he should succeed in obtaining a conviction, he is then rewarded for his good fortune by a restitution of his property, whether in the hands of the felon himself, or of any innocent purchaser who may have chanced to buy them, although in open market. Such is the application made by the law of the righteous principle of restitution.

With regard to horses, a sale in market overt will not confer on the purchaser any further title than is possessed by the vendor, unless the sale be made according to the directions of certain statutes (1); and even then the true owner may at any time within six months after his horse has been stolen, recover his property on tender to the person in possession of the price he bonâ fide paid for it (m).

A factor or agent in the possession of goods could not, by the common law, give any further title to the goods than he was authorized to do by his principal, either expressly or by implication arising from the usual course of his employment (n). And when one man is appointed the agent of another for any particular pur

(i) Stat. 7 & 8 Geo. IV. c. 29, s. 57.

(k) Stone v. Marsh, 6 Barn. & Cress. 551, 564; 2 Wms. Saund. 47 b, n. (p).

(1) Stats. 2 & 3 P. & M. c. 7;

31 Eliz. c. 12; 2 Black. Com.

450.

(m) Stat. 31 Eliz. c. 12, s. 4.
(n) Pickering v. Busk, 15 East,

38, 43.

pose by power of attorney, his authority must still be strictly pursued, otherwise his principal will not be bound (o). But by modern acts of parliament a more extended authority has, for the convenience of commerce, been conferred on factors and agents (p). The provisions of these acts are too long to be here inserted; but their general effect is to render valid sales and pledges made by factors or agents, notwithstanding any notice of the fact of their being merely factors or agents, provided the party dealing with them have no notice that they are acting without authority or malâ fide.

In ancient times the sale of lands was usually accom- Warranty. panied by a warranty of their title; and some words, such as the word give in a feoffment, had the effect of an implied warranty, when none was expressed (q). When warranties fell into disuse, the purchasers of lands acquired a right to covenants for the title, varying in their stringency according to the nature of the title of the vendor (r). No warranty however arises from the mere sale of goods, unless it be expressly given, or implied from the custom of the trade or the nature of the contract (s). Every affirmation made by the vendor at the time of sale respecting the goods is an express warranty, if it appear to have been so intended (t). And if the vendor state that the goods are his own, this amounts to a warranty of his title (u); but if the contract for sale be in writing, the warranty must

(0) Attwood v. Munnings, 7 Barn. & Cress. 278.

(p) Stat. 4 Geo. IV. c. 83; 6 Geo. IV. c. 94; 5 & 6 Vict. c. 39. (9) See Principles of the Law of Real Property, 344.

(r) Ibid. 348.

(s) Chanter v. Hopkins, 4 Mee. & W. 399; Burnby v. Bollett, 16

Mee. & W. 644.

(t) See Richardson v. Brown, 1 Bing. 344; Shepperd v. Kain, 5 Barn. & Ald. 240; Power v. Barham, 4 Ad. & Ell. 473.

(u) Furniss v. Leicester, Cro. Jac. 474; Medina v. Stoughton, 1 Salk. 210.