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S. 21 (2) (b).

S. 21 (1).

Market overt.

S. 22.

Statutory power of sale-e. g., sales by lessors of distress under 2 Will. & Mary, sess. 1, c. 5, s. 2, and 51 & 52 Vict. c. 21; sales by innkeepers under 41 & 42 Vict. c. 38; sales by mortgagees under s. 19 (1) of the Conveyancing Act, 1881; sales under distress for rates, tithes, &c.

Or under the order of a Court-e. g., sales of perishable goods under Ord. 50, r. 2 (c); sales under Ord. 13, r. 13, &c.

ILLUSTRATIONS.

1. B., a farmer, conveys to A., by bill of sale, amongst other things, all the growing crops and chattels and effects which were then or might be on B.'s farm. A. allows B. to continue in possession of the crops and to carry on his business. In the ordinary course thereof, B. sells C., who has no notice of the bill of sale, twelve quarters of wheat. B. has, by implication, a licence from A. to carry on his business in the ordinary way, and the sale to C. is good. National Mercantile Bank v. Hampson (1880), 5 Q. B. D. 177 (d).

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2. A. sells to B. an unascertained quantity of 350 barrels of flour. C. makes advances to B. on the security of the flour, and obtains from him a delivery order on A., which C. lodges with A., who says, All right," and shows C. samples of the flour sold to B. C. sells the flour to various persons, and some of it is delivered by A. A. is estopped as against C. from denying that the property in the flour, though unascertained, passed to B., and C. can bring trover for the residue. Woodley v. Coventry (1863), 2 H. & C. 164 (e).

22. (1.) When the goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller. (2.) Nothing in this section shall affect the law relating to the sale of horses.

(3.) The provisions of this section do not apply to Scotland.

This section is subject to the provisions of s. 24.

A sale of goods in market overt does not bind the Crown either at common law (ƒ) or (according to the general rule of construction of statutes) under this Act. And if the original owner of the goods sold come afterwards into possession of them, his title revives (g).

(c) Bartholomew v. Freeman (1877), 3 C. P. D. 316; The Hercules (1885), 11 P. D. 10; Annual Practice (1894), pp. 317, 875.

(d) Cf. Taylor v. McKeand (1880), 5 C. P. D. 358, where the sale being out of the ordinary course of business

the licence was not duly executed.

(e) See also Knights v. Whiffen (1870), L. R. 5 Q. B. 660; Stoveld v. Hughes (1811), 14 East, 308.

(f) Co. 2 Inst. 713.
(g) Co. 2 Inst. 713.

By 1 Jac. 1, c. 21, s. 5, it was provided that "no sale or pawn of any goods. . . . to any pawnbroker in London, Westminster, or Southwark, shall work any change of the property therein." This Act was repealed (so far as regarded the regulations of the business of pawnbroking) by the Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), s. 4, and is now wholly repealed by the schedule to the present Act. (See schedule of repealed enactments, post.)

Where goods are sold "in market overt."—"Market overt in the country is held on special days provided by charter or prescription (h); but in London every day, except Sunday, is a market day (i). In the country the only place that is market overt is the particular spot of ground set apart by custom for the sale of particular goods, and this does not include shops; but in London every shop (j) in which goods are exposed publicly for sale is market overt for such goods as the owner professes to trade in ❞ (k). 'London," in the above extract, means the City of London. Market overt is "an open, public, and legally constituted market" (7). It seems doubtful how far modern markets, established under parliamentary powers, constitute markets overt (m).

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In accordance with the above principles, there is no market overt, e.g.,

(1) In a scrivener's shop, for plate (n);

(2) In Smithfield, for clothes (v) ;

(3) In Cheapside, for horses (o);

(4) At Aldridge's, for carriages (p).

Furthermore, there must be a sale in the market overt. Such a sale requires "that the commodity should be openly sold and delivered in the market" (q). It is necessary that the goods be "exposed in the market for sale, and the whole transaction begun, continued, and completed in the open market, so as to give the fullest opportunity to the man whose goods have been taken to make pursuit of them and prevent their being sold "(r).

(h) See Benjamin v. Andrews (1858), 5 C. B. N. S. 299.

(i) Case of market overt, 5 Rep. 83 b; and other cases in Benj. p. 8, note (ƒ).

Not a wharf: Wilkinson v.

King (1809), 2 Camp. 335.

(k) Benj. p. 8; 5 Co. 83. See generally, Bac. Ab. Fairs and Markets (E).

(1) Lee v. Bayes (1856), 18 C. B. 599; Benjamin v. Andrews, supra.

(m) Cf. per Cockburn, C.J., in
Moyce v. Newington (1878), 4 Q. B.
D. at p. 34, with Ganley v. Ledwidge
(1876), Ir. R. 10 C. L. 33, 133.
(n) 5 Rep. 83 b.

(0) Moore, 360.

(p) Marner v. Banks (1867), 17 L. T. N. S. 147.

(9) Per Mansfield, C.J., in Hill v. Smith (1812), 4 Taunt. 532.

(r) Per Cockburn, C.J., in Crane v. London Docks Co. (1864), 5 B. & S. 313.

S. 22.

S. 22 (1).

8. 22 (1).

Sale to a shop keeper in the city of London.

Therefore, a sale by sample in market overt, the delivery not taking place there, nor the goods being there, is ineffectual to pass the property (s). So also if the treaty for the sale began out of market overt (t).

According to the usage of the market. Thus "the buyer is not protected if the sale be made in a covert place, as a back room, warehouse, or shop with closed windows, or between sunset and sunrise (u); or if the treaty for sale be begun out of market overt" (x).

As regards the particular place of the sale, "it is impossible, upon a careful perusal of the scanty authorities upon the subject, not to see that there is a certain element of publicity required in the transaction to bring it within the principle of a sale in market overt. The market, to be a market overt, must be an open, public, and legally constituted one (y). The shop in London must be one in which goods are openly sold; that is, when they are sold in the presence and sight of any one of the public who may come into the shop upon legitimate occasion" (z).

With respect to sales, not by, but to, a shopkeeper in the city of London, a doubt was expressed in Crane v. London Docks Co. (z), supra, whether the privilege of market overt was extended thereto. It would seem, prima facie, that a sale to a shopkeeper is not in accordance with the common usage of market overt. In Lyons v. De Pass (a) the question was not raised, and in the latest case on the point (b) the question was again left undecided, though an opinion was expressed that the sale was not within the privilege. Wills, J. (after quoting Lord Coke (c), that every shop in London is a market overt for such things only which, by the trade of the owner, are put there to sale"; and Blackstone (d), to the effect that the goods in the shop must be "exposed publicly,") proceeds (e):-" When a casual person, having jewellery for sale, goes into a jeweller's shop to sell it, if he can, to the jeweller, it seems to me that the goods so offered for sale to the one person who is carrying on the business in that shop, are neither 'put there to sale' nor 'exposed publicly to

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(s) Hill v. Smith (1812), 4 Taunt.
532; and Crane v. London Docks Co.
(1864), 5 B. & S. 313; Newtownards
Commrs. v. Woods (1877), Ir. R. 11
C. L. 506.

(t) Co. 2 Inst. 713.
(u) Co. 2 Inst. 714.

(x) Benj. p. 9; 5 Co. 83.

(y) Per Jervis, C.J., in Lee v.

Bayes (1856), 18 C. B. 601.

(z) Per Wills, J., in Hargreave v. Spink, [1892] 1 Q. B. at p. 26; 61 L. J. Q. B. at p. 318.

(a) (1840), 11 A. & E. 326. See also Taylor v. Chambers (1605), Cro. Jac. 68.

(b) Hargreave v. Spink, supra. (e) 5 Rep. 836.

(d) 2, 449.

(e) Hargreave v. Spink, supra, at pp. 28, 31.

sale,' expressions which seem to me to point to goods placed in the shop, by or with the consent of the shopkeeper, for sale to all persons prepared to buy." Then, after referring to (inter alia) the statute 1 Jac. 1, c. 21, s. 5 (repealed by this Act), as some evidence that sales to shopkeepers were within the privilege, he says: "The custom is a general one, applicable to all sorts of shops, and it might therefore be expected naturally to deal only with a state of things common to at least the great majority of shops." It is apprehended that this rule of market overt does not cover sales other than those by a shopkeeper.

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Provided, &c.—“A sale in market overt does not protect a buyer who knew they [the goods] were not the property of the seller, or was guilty of bad faith in the transaction” (ƒ). In good faith is defined in s. 62 (2) as "honestly, whether . . . negligently or not."

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The law relating to the sale of horses.-The provisions of the statutes 2 & 3 P. & M. c. 7 (in 1555), and 31 Eliz. c. 12 (in 1589), relating to the sale of horses, are set out in the Appendix of Statutes at the end of this work. See also Bac. Ab. "Fairs and Markets," and Com. Dig. "Market." The more modern cases are referred to in the note (g).

The provisions of this section do not apply to Scotland. The English law as to sales in market overt has never obtained sanction in Scotland (h).

ILLUSTRATIONS.

1. Stolen jewellery is sold by A. to B. in a show-room above B.'s shop, to which the public had access only on permission. This is not a sale in market overt, because-(1) the place of sale is not the open shop; (2) (probably) because the sale is not by, but to, B. Hargreave v. Spink, [1892] 1 Q. B. 25; 61 L. J. Q. B. 318.

2. B., who carries on at one shop the business of drug merchant, and at another that of oil and colourman, buys from A. at the first shop, by sample, stolen opium. The bulk is delivered at the other shop. This is not a sale in market overt of the opium, as (1) the bargain only took place at a shop which is an open market for opium and the delivery elsewhere; (2) (probably) because B. was the buyer, and not the seller, of the opium. Crane v. London Docks Co. (1864), 5 B. & S. 313.

S. 22 (1).

S. 22 (2).

S. 22 (3).

S. 22.

23. When the seller of goods has a voidable title Sale under thereto, but his title has not been avoided at the voidable title. time of the sale, the buyer acquires a good title to

(ƒ) Benj. p. 9, quoting Co. 2 Inst. 713.

(g) Joseph v. Adkins (1817), 2 Stark. 76; Lee v. Bayes (1856), 18 C. B.

599; Moran v. Pitt (1873), 42 L. J.
Q. B. 47.

(h) Bell's Comm. ss. 527, 1320.

S. 23.

the goods, provided he buys them in good faith and without notice of the seller's defect of title.

The seller has a voidable title-i. e., voidable by reason of (inter alia) any of the invalidating causes mentioned in s. 61 (2). This section re-enacts the well-known rule of law which is thus stated by Lord Cairns (i):-" By the law of our country, the purchaser of a chattel takes the chattel, as a general rule, subject to what may turn out to be certain infirmities in the title. [But] if it turns out that the chattel has come into the hands of the person, who professed to sell it, by a de facto contract, that is to say, a contract which has purported to pass the property to him from the owner of the property, then the purchaser will obtain a good title, even though afterwards it should appear that there were circumstances connected with that contract which would enable the original owner of the goods to reduce it, and set it aside, because these circumstances so enabling the original owner of the goods, or of the chattel, to reduce the contract and to set it aside, will not be allowed to interfere with a title for valuable consideration obtained by some third party during the interval while the contract remained unreduced" (j).

The above rule is only an instance of the general principle that, where one of two innocent parties must suffer by the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud (k).

The seller's title accordingly must be "voidable," and not "void." In the former case a new act is requisite to avoid the title acquired under the transaction, and until such avoidance a sub-buyer is protected. In the latter case, the transaction is void ab initio, and there are no rights or title arising thereunder which can be transferred to the sub-buyer. "We must distinguish whether the facts show a sale to the party guilty of the fraud, or a mere delivery of the goods into his possession, induced by fraudulent devices on his part. In the former case there is a contract of sale, however fraudulent the device, and the property passes; but not in the latter case. In the former case the contract is voidable at the election of the seller, not void ab initio. It follows, therefore, that the seller may affirm and enforce it, or may rescind it" (7). In the latter case we have "to deal

(i) In Cundy v. Lindsay (1878), 3 Ap. Ca. at p. 463.

() See also Babcock v. Lawson (1879), 4 Q. B. D. 394, affirmed 5 Q. B. D. 284; White v. Garden (1851), 10 C. B. 919.

(k) Babcock v. Lawson, supra.

(1) Benj. p. 412. See Attenborough v. London & St. Katherine Docks Co. (1878), 3 C. P. D. 450; Babcock v. Lawson (1880), 4 Q. B. D. 394. The principle is also clearly stated in

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