entertained in Westminster Hall, at so late a period as the year 1771; and especially that Sir William Blackstone should have acquiesced, without any difficulty, in a different construction of the statute of West. I.

But to return to the history of the law of property. The title to it was gradually strengthened, and acquired great solidity and energy, when it came to be understood that no man could be deprived of his property without his consent, and that even the honest purchaser was not safe under a defective title.

The exceptions to this rule grew out of the necessities and the policy of commerce; and it was established as a general rule that sales of personal property in market overt would bind the property, even against the real owner. The markets overt in England depend upon special custom, which prescribes the place, except that in the city of London every shop, in which goods are exposed publicly to sale, is market overt for those things in which the owner professes to trade. If goods be stolen, and sold openly in such a shop, the sale changes the property. But if the goods be not sold strictly in market overt, or if there be not good faith in the buyer, or there be anything unusual or irregular in the sale, it will not affect the validity of it as * against the title of the real * 324 owner. (a) The common law, according to Lord Coke, (b) held it to be a point of great policy, that fairs and markets overt should be well furnished; and, to encourage them, did ordain that all sales and contracts, of anything vendible in markets overt, should bind those who had a right; but he adds, that the rule had many exceptions, and he proceeds to state the several ex ceptions, which show the precision and caution with which the sale was to be conducted so as to bind the property. It is the settled English law that a sale out of the market overt, or not according to the usage and regulations of the market overt, will not change the property as against the real owner. (c). Thus we

(a) 5 Co. 83. 12 Mod. 521. Bacon's Use of the Law, 157. Com. Dig. tit. Market, E. Shelley v. Ford, 5 Carr. & Pa. 313. Markets overt were derived from the Saxon laws, which would not allow a transfer of goods to be valid unless made before witnesses.

(b) 2 Inst. 713.

(c) 2 Blacks. Com. 449. Foxley's case, 5 Co. 109 a. Peer v. Humphrey, 4 Nev. & Mann. 430. S. C. 1 Harr. & Woll. 28. But a sale in market overt will not bar the original owner of stolen goods, if he prosecute the thief to conviction, and sue the person in whose possession they were at the time of the conviction. This is by the statute of

find, in the case cf Wilkinson v. King, (d) that where the owner of goods had sent them to a wharf in the borough of Southwark, where goods of that sort are usually sold, and the wharfinger, without any authority, sold the goods to a bonâ fide purchaser, this was considered not to be a sale in market overt so as to change the property, but a wrongful conversion, for the wharf was not a market overt; and the purchaser was held liable in trover to the true owner. So it is said to be a general rule that goods obtained by a tort or criminal fraud, under color of a contract, may be taken by the vendor out of the hands of the purchaser, or even of a purchaser from the tortious vendee. (e)

It is understood that the English custom of markets overt does not apply to this country; and the general principle applicable to the law of personal property throughout civilized Europe is, that nemo plus juris in alium transferre potest quam ipse habet. This is a maxim of the common and of the civil law; (ƒ) and a sale ex vi termini, imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor. It has been frequently held in this country, (g) that the English law of the market overt

21 Henry VIII. c. 11, and which was adopted in Virginia, in 1792. Horwood v. Smith, 2 Term Rep. 750. Peer v. Humphrey, ub. sup. Coke, 2 Inst. 714. Burgess v. Coney, Trem. P. C. 315. But trover will lie against the innocent purchaser of stolen goods, although no steps have been taken to prosecute the thief to conviction. White v. Spettigue, 13 Mees. & W. 603. S. C. 1 Carr. & Kir. 673.

(d) 2 Campb. 335.

(e) Long on Sales, by Rand, pp. 167, 168. (f) Co. Litt. 309. Dig. 41, 1, 20. Ersk. Inst. 418. 1 Bell's Com. 281.

(g) Dame v. Baldwin, 8 Mass. 518.

Pothier Traité du Contrat de Vente, 1, n. 7.

Wheelwright v. Depeyster, 1 Johns. 479. Ho

sack v. Weaver, 1 Yeates, 478. Easton v. Worthington, 5 Serg. & Rawle, 130. Browning v. Magill, 2 Harr. & Johns. 308. M'Grew v. Browder, 14 Martin (Louis.) 17. Roland v. Gundy, 5 Ham. (O.) 202. Lance v. Cowen, 1 Dana (Ken.) 195. Ventress v. Smith, 10 Peters U. S. 161. Hoffman v. Carow, 22 Wendell, 285. In that case it was adjudged in the Court of Errors, that an auctioneer who sold stolen goods was liable to the owner in trover, though the goods were sold by him, and the proceeds paid over to the thief, without notice of the felony. See, also, Anderson v. Nicholas, 5 Bosw. 121. It was declared, by statute in Pennsylvania, in 1780, that no sale of a stolen

1 A public sale of a horse at a repository for the sale of horses is not a sale in market overt in England. Lee v. Robinson, 37 Eng. L. & Eq. 406.

2 It has been decided that there are no markets overt in Vermont. The subject was fully discussed, and the reasoning is strong against their existence in any of the states in the Union. Griffith v. Fowler, 18 Vermont, 390. And in Carmichael v. Buck, 10 Rich. Law (S. C.) 332, the court said there was no market overt in South Carolina.

* had not been adopted; and consequently, as a general * 325 rule, the title of the true owner cannot be lost without his own free act and consent. How far that consent, or a due authority to sell is to be inferred, in many cases, for the encouragement and safety of commerce, may be discussed in our future inquiries. (a) A radical defect of title in the possessor is, by the general jurisprudence of Europe, available to the true owner against creditors and purchasers and there is such a defect, when the person from whom the property was acquired was incapable of consent, or when the thing had been stolen, or obtained by violence. The true owner, in those cases, may vindicate his title. If goods be stolen, no title passes from the felon to the bona fide

horse should operate to change the property. This was before it was settled that we had no markets overt in this country in the sense of the English common law. In Scotland, the true owner may reclaim his property, even from the bonâ fide purchaser in market overt. Bell's Princip. sec. 527.

(a) The doctrine that possession carries with it the evidence of property, so as to protect a person acquiring property in the usual course of trade, is said to be limited to cash, bank bills, and bills and checks payable to bearer. Saltus v. Everett, 20 Wendell, 267.1 By statute 6 Geo. IV. c. 94, the consignee of goods from the shipper is entitled to a lien in respect to money or negotiable securities advanced for the shipper, without notice that the shipper was not the bonâ fide owner. And any person intrusted with a bill of lading, or order for the delivery of the goods, was to be deemed the true owner of the goods, so far as to give validity to any sale or disposition thereof by deposit or pledge, if the buyer or pawnee had not notice that such person was not the true owner. So, any person taking goods on deposit or pledge for a preëxisting debt from the party in possession, without notice that he was not the owner, acquires the right that was in the person making the deposit or pledge. Any person may accept goods on any such document, on deposit, or pledge from any factor or agent, with knowledge that he was a factor or agent, and he will acquire the title or interest of the factor or agent. And any person may contract for the purchase of goods from any factor, agent, or consignee in possession thereof, and make payment thereof with knowledge of such agency, provided the contract be made in the usual course of business, and without notice of any want of authority in the agent to sell and receive payment. The true owner, prior to the sale or pledge, may recover from the factor or agent, or his assignees, and from the buyer, the price of the goods, subject to his right of set-off against the agent, and may recover the goods deposited or pledged on repayment of the money or restoration of the negotiable paper advanced on security thereof, and on payment of the money or restoration of the negotiable paper advanced by the factor or agent. So, he may recover from any person any balance in hand, being the produce of the sale of the goods, after deducting the money or negotiable paper advanced on the security thereof.

1 See, on this subject, Kingsbury v. Smith, 13 N. Hamp. 109. Robinson v. Dauchy 3 Barb. (N. Y.) 20 McMahon v. Sloan, 12 Penn. 229.

purchaser. (b) 2 But this is not the place to pursue further this inquiry. My object, at present, is only to show how the right of the true owner to property kept increasing in consideration and vigor, with the progress of law from rudeness to refinement.

Title to property, resting originally in occupancy, ceased, of course, upon the death of the occupant. Sir William Blackstone considers the descent, devise, and transfer of property, political institutions, and creatures of the municipal law, and not natural rights; and that the law of nature suggests, that on the death of the possessor, the estate should become common, and be open to the next occupant. He admits, however, that for the sake of peace and order, the universal law of almost every nation gives to the possessor the power to continue his property by will; and if it be not disposed of in that way, that the municipal law steps in and declares who shall be heir of the deceased. (a) * 326 As a mere speculative question, it may be doubted whether this be a perfectly correct view of the law of nature on this subject. The right to transmit property by descent, to one's own offspring, is dictated by the voice of nature. (b) The universality of the sense of a rule or obligation, is pretty good evidence that it

(b) Fraud and breaches of trust are said not to be among the radical defects which will absolutely annul the title of the subsequent bonâ fide purchaser; and Mr. Brown has, though I think mistakingly, contended, that cases of force and fear stand on the same footing, for I apprehend that force and fear will destroy the contract entirely. Brown on Sales, 395. 1 Bell's Com. 281, 286, 287, 289. Mr. Bell shows from the cases which he cites, that it is not clearly settled in what cases a sale by a person in lawful possession will bind the real owner, if the sale be founded on a breach of trust. Vide infra, p. 514, note. If a bailee of property for a special purpose, sells it, the bonâ fide purchaser does not acquire a valid title. Wilkinson v. King, 2 Campb. 335. Hartop v. Hoare, Atk. 44. Hardman v. Willcock, 9 Bing. 382, note. Galvin v. Bacon, 2 Fairf. 28. Story on Bailments, p. 79, 2d edit. But if the vendor delivers goods with the intention that the property as well as the possession shall pass, a bonâ fide purchaser from a fraudulent vendee will hold the goods. Andrew v. Dietrich, 14 Wendell, 31. It is sufficient, for the purpose of protecting a bonâ fide purchaser, that the owner of personal property confers an apparent right of property upon the vendor, as when he sells goods and delivers posses sion, although the goods were obtained from him fraudulently; and he confers an appar ent right of disposal, when he furnishes the vendor with the external indicia of such right or where a bill of lading is sent to a consignee with a power of transfer. Saltus v. Ev erett, 20 Wendell, 267.

(a) Com. vol. ii. ch. 1, 10-13.

(b) Grotius, b. 2, ch. 7, sec. 5.

2 State of California v. Wells, 15 Cal. 336.

has its foundation in natural law. (c) It is in accordance with the sympathies and reason of all mankind, that the children of the owner of property which he acquired and improved by his skill and industry, and by their association and labor, should have a better title to it at his death than the passing stranger. It is a continuation of the former occupancy in the members of the same family. This better title of the children has been recognized in every age and nation, and it is founded in the natural affections, which are the growth of the domestic ties, and the order of Providence. (d) But the particular distribution among the heirs of the blood, and the regulation and extent of the degrees of consanguinity, to which the right of succession should be attached, do undoubtedly depend upon positive institution; and it seems to be the general doctrine, founded on the history of all nations and ages, that property in land, when such property began to exist and to be recognized, was originally vested in the state or sovereign, and derived by grant to individuals. (e)

The power of alienation of property is a necessary incident to the right of property, and was dictated by mutual convenience and mutual wants. It was first applied to movables; and a notion of separate and permanent property in land could not have arisen until men had advanced beyond the hunter and shepherd states, and become husbandmen and farmers. Property in land would naturally take a faster hold of the affections; and, from the very nature of the subject, it would not be susceptible of * 327 easy transfer, nor so soon as movable property be called into action as an article of commerce.

Delivery of possession was, anciently, necessary to the valid transfer of land. When actual delivery became inconvenient, symbolical delivery supplied its place; and as society grew in cultivation and refinement, writing was introduced, and the alienation of land was by deed.

The gratuitous disposition of land by will was of much slower growth than alienations, in the way of commerce, for a valuable

(c) Omni in re consensio omnium gentium lex naturæ putanda est. Cic. Tuscul. Quæst. lib. 1, ch. 13.

(d) Christian's notes to 2 Blacks. Com. ch. 1. Taylor's Elements of the Civil Law, 519. Toullier, Droit Civil Français, tom. iii. pp. 121-128.

(e) Grotius, b. 2, ch. 2, sec. 4. Ibid, ch. 3, sec. 4.