he shall give something in earnest to bind the bargain, or in part payment (e); or unless some memorandum or note in writing, of the same bargain, be made and signed by the parties to be charged with such contract, or their agents thereunto lawfully authorized (f). In addition to which it is provided by 9 Geo. IV. c. 14 (called Lord Tenterden's Act), s. 7, that the said enactments shall extend to all contracts for the sale of goods of the value aforesaid, notwithstanding that the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, procured, or provided, or fit or ready for delivery; or that some act may be requisite for the making or completing thereof, or rendering the same fit for delivery (g). If the vendor of goods transmit them to the vendee, without receiving payment of the price, and afterwards becomes apprised that the latter is bankrupt, or insolvent, the law allows him the privilege of stoppage in transitu ; that is, it entitles him while the goods are still in their transit, and not yet delivered to the vendee, to reclaim them, and to determine or at least to suspend the performance of, the contract of sale (h). Nor will this right be prevented by (e) See Walker v. Nussey, 16 Mee. & W. 302. (f) See as to this provision of the Statute of Frauds the following cases-Stead v. Dawber, 10 Ad. & El. 57; Richardson v. Dunn, 2 Q. B. 218; Marshall v. Lynn, 6 Mee. & W. 109; Thornton v. Charles, 9 Mee. & W. 802; Chapman v. Morton, 11 Mee. & W. 534; Norman v. Phillips, 14 Mee. & W. 277; Graham v. Musson, 5 Bing. N. C. 603; Fricker v. Tomlinson, 1 Man. & Gr. 772; Archer v. Baynes, 5 Exch. 625; Harman v. Reeve, 18 C. B. 587. As to the construction of the statute, in reference to the sale of scrip or shares in a joint-stock or railway company, see Humble v. Mitchell, 11 Ad. & El. 205; Tempest v. Kilner, 3 C. B. 249; Bowlby v. Bell, ib. 284; Watson v. Spratley, 10 Exch. 223. As to its effect in reference to bought and sold notes, see Sievenright v. Archibald, 20 L. J., Q. B. 529. (g) As to the state of the law on this subject before the passing of Lord Tenterden's Act, see Garbut v. Watson, 5 Barn. & Ald. 613; Groves v. Buck, 3 Mau. & Sel. 179. (h) See Hodgson v. Loy, 7 T. R. 440; Mills v. Bull, 2 B. & P. 457; Litt v. Cowley, 7 Taunt. 169; Ruck v. Hatfield, 5 B. & Ald. 632; Edwards. Brewer, 2 Mee. & W. 379 ; the vendor's having consigned the goods to the vendee under a bill of lading (i); but if the latter indorse the bill of lading to a third party, for valuable consideration, who receives it without notice that the consignee is insolvent and the consignor unpaid, such party's claim, as assignee of the property under the bill of lading, is paramount to the consignor's right to stop in transitu (k). Though, in general, it is only from the owner of goods that any property in them can be derived, yet in some cases they may be effectually purchased from a vendor, who has himself no title; [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 would soon be at an end. And therefore the rule of law] (subject to some exceptions to be presently noticed) [is, that all sales and contracts of any thing vendible in fairs or in markets overt (that is, open), shall not only be good between the parties, but also be binding on all those that have any right or property therein. And for this purpose, the Mirror (1) informs us, 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 20d., unless in open market, and directed every bargain and sale to be contracted in the presence of credible witnesses (m). Market overt, in the country, is only Whitehead v. Anderson, 9 Mee. & W. 518; Wentworth v. Outhwaite, 10 Mee. & W. 436; Tanner v. Scovell, 14 Mee. & W. 28; Jackson v. Nichol, 5 Bing. N. C. 508; Dodson v. Wentworth, 4 Man. & G. 1080; Wilmshurst v. Bowker (in error), 7 Man. & Gr. 882; Valpy . Gibson, 4 C. B. 837; Bird v. Brown, 4 Exch. 786; Turner v. Trustees of Liverpool Docks, 20 L. J., Ex. (in error), 393; Gurney v. Behrend, 3 Ell. & Bl. 622. (i) See 18 & 19 Vict. c. 111, s. 2; sup. p. 48. (k) See Lickbarrow v. Mason, 2 T. R. 63; 6 T. R. 131; 1 H. Bl. 357; in the matter of Westzinthus, 5 B. & Ad. 817; Jones v. Jones, 8 Mee. & W. 431. (1) Cap. 6, s. 8. (m) Wilkins's Leg. Anglo-Sax. Ll. Ethel. 10, 12, Ll. Eadg. 80. [held on the special days provided for particular towns, by charter or prescription, but in London every day, except Sunday, is market day (n). 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 (0); but in London every shop in which goods are exposed publicly for sale is market overt, but only for such things as the owner professes to trade in (p). But if my goods are stolen] or wrongfully taken (q) [from me, and sold out of market overt, my property is not altered, and I may take them wherever I find them.] And by the Pawnbrokers Act, 39 & 40 Geo. III. c. 99 (a statute amended as to certain of its provisions by 9 & 10 Vict. c. 98, and 19 & 20 Vict. c. 27), it is enacted, that any person suspecting his goods to have been unlawfully pawned, and satisfying a justice of the peace that there is probable ground for that suspicion, may obtain a warrant for searching the house of the person supposed to have taken them in pawn, and if on such search they shall be found, and the property of the claimant proved, he shall be entitled to have them restored (r). The common law has provided, however, with respect to every sale in market overt, that [if the goods be crown property, such sale (though regular in all other respects) will in no case bind the crown, though it binds infants, femes covert, (n) Taylor v. Chambers, Cro. Jac. 68. By 27 Hen. 6, c. 5, all fairs and markets, on certain principal feasts, and Sundays and Good Friday, shall cease as therein mentioned, the four Sundays in harvest excepted. But by 13 & 14 Vict. c. 23, that exception is repealed, and the act shall be construed as if it were not inserted therein. (0) Godb. 131. (p) 5 Rep. 83; 12 Mod. 521. As to the markets in London, vide Pulling on the Customs of London, p. 401. (9) See Peer v. Humphrey, 2 Ad. & El. 495; White v. Spettigue, 13 Mee. & W. 603; White v. Garden, 10 C. B. 919; Kingsford v. Merry, 11 Exch. 577, 5 W. R. 151. (r) There is also an express provision in 1 Jac. 1, c. 21, that the sale of any goods wrongfully taken to any pawnbroker in London, or within two miles thereof, shall not alter the property. [idiots or lunatics, and men beyond seas, or in prison;] and by the Larceny Act, 7 & 8 Geo. IV. c. 29, if goods be stolen from a common person, or obtained from him on false pretence, and he prosecutes the guilty party to conviction, he will be entitled to an order for restitution; and this notwithstanding any intervening sale in market overt (s). 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] under other disability; [if the sale be not originally and wholly made in a fair or market, or not at the usual hours; -in all these cases, the owner's property is not bound thereby (t). If a man buys his own goods in a fair or market, a 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 (u). 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 the first breach of justice (v). By which wise regulations, the common law has secured the right of the proprietor in personal chattels from being divested, so far as was consistent with that other necessary policy, that bonâ fide purchasers 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 the property is not easily altered by sale, without the express consent of the owner; and those are horses (x). For a pur (s) Such appears to be the effect of 7 & 8 Geo. 4, c. 29, s. 57. And see Scattergood v. Sylvester, 15 Q. B. 506. Even before this act, the owner was entitled to restitution, after conviction, in the case of a felonious taking, notwithstanding a sale in market overt; 2 Inst. 714; 1 Hale, P. C. 543; vide Horwood Inst. 713. (x) 2 Inst. 713. [chaser 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; by which it is enacted, that the horses 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 bookkeeper of such fair or market; that toll be paid if any be due, and if not, one penny to the bookkeeper, who shall enter down the price, colour, and marks of such horse, with the name, additions and abode of such 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 put in his claim before some magistrate where the horse shall be found, and within forty days more prove such his property, by the oath of two witnesses, and tender to the person in possession such price as he bonâ fide paid for him in market overt. But in case any 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 (y). By the civil law (2), an implied warranty was annexed to every sale, in respect to the title of the vendor;] and, though, according to some modern decisions, this seems not to be the rule of our law, yet, if a person sell goods and chattels as his own, and the price be paid, and the title prove deficient, he will be liable to refund the money to the purchaser, on the ground of failure in the consideration on which it was paid (a). [But with regard (y) As to the sale of stolen horses, see 2 Chit. Com. L. 151; Com. Dig. Market (E); Gibbs' case, Owen, 27; 1 Leon. 158; Wikes v. Morefoots, Cro. Eliz. 86; Joseph v. Adkins, 2 Stark. 76; Lee v. Bayes, 18 C. B. 599. (*) Ff. 21, 2, 1. (a) See Crosse v. Gardner, Carth. 90; Medina v. Stoughten, Salk. 210; |