Sect. 23. Effect of suspensive condi is acquired even after delivery, if there is a condition of the sale suspending the passing of the property. This was the tion upon title. ground of judgment in such cases as Murdoch and Co. Ltd. v. Greig (1889), but all these are now subject to Sect. 25 (2) of this Act, and to the provisions of the Factors Act 1889.2 Effect of bankruptcy upon seller's title. A purchaser in good faith and for value is not affected by the seller's constructive fraud under the bankruptcy Acts, so long as the insolvent seller is not divested of his estates by sequestration, and even after sequestration, a boná-fide purchaser in possession is not obliged to restore, if he acted in ignorance of the sequestration, and has paid or is ready to pay the price.* Sect. 24. PROPERTY IN -- 24. (1.) Where goods have been stolen and the REVESTING OF Offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise. (2.) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person semble each other, but in the latter case there must have been delivery, while under the present section the property may have passed under a voidable title so as to validate a second sale, although the first buyer never obtained possession. 13 Ret. 396. Brown v. Marr, Barclay, etc. (1880), 7 Ret. 427, was an exception, but it was practically overruled by Macdonald v. Western (1888), 15 Ret. 988. 252 & 53 Vict. c. 45, Sect. 2. Sect. 9 of the Factors Act is practically the same as Sect. 25 (2) of this Act. The Factors Act was extended to Scotland by the Factors (Scotland) Act 1890 (53 & 54 Vict. c. 40). See text of Acts, Appendix I. post, pp. 296, 302. 3 Bankton, i. 10. 78; Bell's Com. ii. 179. Goudy on Bankruptcy, p. 48. 4 Bankruptcy Act 1856 (19 & 20 Vict. c. 79), Sect. 111. who was the owner of the goods, or his personal Sect. 24. representative, by reason only of the conviction of the offender. (3.) The provisions of this section do not apply to Scotland. COMMENTARY. upon the market overt. These provisions are supplementary to Sect. 22 relating Sub-sect. (1). to market overt. The special privilege which in England Restriction and Ireland pertains to market overt is restricted by the privilege of rule of the first sub-section, which even in its statutory form is as old as 21 Hen. VIII. c. 11 (1529). But the exception to the privilege does not go the length of subjecting an innocent purchaser to the full responsibility of the English common-law rule as to stolen property. has bought in market overt, and has in turn parted with the goods before the offender is prosecuted to conviction, he will not be liable to the true owner. The property revests in the owner in the event mentioned, but in the meantime it had vested in the innocent purchaser. The owner had been divested and had no right of property in the goods between the date of the purchase in market overt and the conviction of the offender. In the circumstances supposed, the result is the same as under the Scottish com- Compared mon-law rule to which reference has been already made.2 with Scots In Scotland the true owner is never divested, yet he has no claim against an intermediate bond-fide holder. His 1 The object seems to be to furnish an incentive to the private prosecution of criminals in the absence, or the imperfect operation, of public prosecution. An owner whose goods have been stolen, and who has spent time and money in endeavours to recover them, cannot be expected to add to his loss and to subject himself to trouble and risk by voluntarily undertaking the prosecution of the thief. But to induce him to do so the law promises that in the event of success he may recover his property even from an innocent purchaser in market overt. In Scotland, where there is no privilege of market overt, the true owner can recover unconditionally. The system of public prosecution is so complete that it is unnecessary to impose any duty of prosecution upon private individuals, and criminal prosecutions by private persons are practically unknown. 2 Ante, p. 111. law. Sect. 24. Sub-sect. (2). Bentley v. Vilmont. only claim is against the goods themselves, which are subject to a vitium reale and can be revindicated wherever met with. The object of the second sub-section was to correct the Larceny Act (1861) in so far as it extended the process of revesting to cases where the owner was not divested by market overt, but had parted with the goods in virtue of some title, not void, but only voidable. The term " larceny" was wide enough to cover those cases which, but for market overt, would have left the owner undivested, but the Larceny Act extended the effect of larceny to other offences, such as fraud and extortion, which at common law did not infer nullity of title, and which therefore gave no right to the former owner to recover the goods from a bond-fide holder for value. It follows that if the former owner was divested by other means than market overt, he should not have been revested by a process which was intended to form an exception to market overt. 3 This effect of the Larceny Act was brought out in Bentley v. Vilmont 3 (1887), where an innocent purchaser bought goods in market overt without notice of any irregularity, but when the sellers to him were prosecuted to conviction for having induced the owner by fraud to part with the goods under a voluntary contract of sale, he was compelled to make restitution. In delivering judgment in the House of Lords Lord Watson said: "I have great difficulty in supposing that the Legislature, as an incentive to the prosecution of crime, deliberately intended in the case. where the property had been passed by the act of the original owner, to deprive the honest purchaser both of his goods and of his money; but I have been unable to put a reasonable 124 & 25 Vict. c. 96, Sect. 100, re-enacting and adding to 7 & 8 Geo. IV. c. 29, Sect. 57. 2 The words of the Larceny Act (Sect. 100) are, "If any person guilty of any such felony or misdemeanour as is mentioned in this Act, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for such offence, by or on behalf of the owner of the property or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative." 3 12 App. Ca. 471. construction upon the language of Sect. 100, which will Sect. 24. avoid that inequitable result.1 The section does not apply to Scotland, there being no Sub-sect. (3). privilege of market overt in Scots law." (c) (e) (d) 25.—(1.) Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title " under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same. (5) (d) (2.) Where a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title" to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title, (m) under any sale," pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right (") of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or trans 1 12 App. Ca. at p. 477. Doubt has been thrown upon the efficacy of the present section to carry out its manifest intention (Law Times, 12th May 1894), but it was held sufficient in Goldman v. Koenig before the County of London Quarter Sessions, 9th August 1894, and see Payne v. Wilson, 21st January 1895, Q. B. D. 11 Times Law Rep. 179. 2 See Coм., Sect. 22 ante, p. 111. Scotland excluded. Sect. 25. BUYER IN AFTER SALE. Sect. 25. fer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. (3.) In this section the term "mercantile agent" («) has the same meaning as in the Factors Acts. NOTES. (a) "Continues or is." The alternative suggested by these words may refer to goods appropriated to the contract after its date, or to goods sold while in the hands of a third party, and subsequently taken possession of by the seller. (b) "Document of title to goods' has the same meaning as it has in the Factors Acts." Sect. 62 (1). (c) "Delivery or transfer." Delivery is defined Sect. 62 (1). The section makes delivery or transfer of the goods or documents of title essential, and therefore the transaction must be executed, not merely executory. In this respect the provision differs from the similar enactment in the now repealed Factors Act of 1877.1 (d)" Mercantile agent." The use in this section of the term "mercantile agent" creates a difficulty. Sects. 8 & 9 of the Factors Act 18892 (which are reproduced almost verbatim in the present section) are quite distinct from the other sections of the Factors Act, and contemplate a transaction with a principal 3 as well as with an agent. The express mention here of a mercantile agent suggests that a principal cannot employ an ordinary agent to do what he can validly do himself, and that the act of such an agent will not carry the same consequences as the act of a principal. This is contrary to the maxim qui facit per alium facit per se, and it is difficult to see any good reason for the restriction. (e) "Sale." Defined Sect. 62 (1). See also Sect. 1. The effect of a sale under this section differs from that under Sect. 48 (2). See note (d), Sect. 48 post, p. 230. 140 & 41 Vict. c. 39, Sect. 3. See judgment of North, J., in Nicholson v. Harper [1895], 11 Times Law Rep. 435. 252 & 53 Vict. c. 45. 3 As in Lee v. Butler [1893], 2 Q.B. 318; Helby v. Matthews [1894], 2 Q.B. 262, Rev. H.L. [1895], 11 Times Law Rep. 446; Payne v. Wilson [1895], Q.B. Div. 11 Times Law Rep. 179. See Hastings, Ltd. v. Pearson [1893], 1 Q.B. 62, but this judgment was under Sects. 1 & 2 of the Factors Act, not under Sects. 8 & 9. |