[had been previously altered by a former sale (s); and notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, should come 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 (t). By these wise regulations, the law has secured the right of the proprietor in personal chattels from being improperly divested; so far at least as is consistent with that other necessary policy, that bona fide purchasers in an open and regular manner shall not be afterwards put to difficulties by reason of the previous knavery of the seller.]

Fourthly, where there has been a bonâ fide purchase in market overt, if the property so bought was stolen from the owner, the true owner may prosecute the offender to conviction, and thereupon the property in the goods will re-vest in him, and he may obtain an order of restitution, -to which order he will be entitled notwithstanding the intervening sale in market overt (u), the bona fide purchaser in such a case receiving only such (if any) compensation, out of the property of the thief, as the convicting judge may direct (a). And if my goods are stolen or in any other way wrongfully taken from me and sold out of market overt, my property therein is not altered, and I may re-take them wherever I find them, even from an innocent vendee, except where the acquisition from me was voidable only, and a bona fide purchaser took the goods before I elected to avoid the transaction (y). It has been enacted by the Pawnbrokers Act, 1872, that a person suspecting any article of which he is the owner to have been unlawfully pawned, and on oath satisfying a justice that there is good cause and probable ground for

(8) Perk. s. 93.

(t) 2 Inst. 713.

(u) Bentley v. Vilmont (1887), L. R. 12 App. Ca. 471; s. 24 of the Act of 1893.

(x) Section 9.

(y) Farquharson v. King, [1902] A. C. 325; Cundy v. Lindsay (1878), L. R. 3 App. Ca. 459; s. 23 of the Act of 1893.

such suspicion, may obtain a warrant for searching the house of the pawnbroker; and if on such search the goods shall be found, and the property of the claimant proved, he shall be entitled to have them restored (). Also, with regard to horses, a purchaser gains no property in one which has been stolen, unless he not only buys it in a fair or market overt, but also in accordance with the directions of the statutes 2 & 3 P. & M. c. 7, and 31 Eliz. c. 12 (a); by which statutes it was [enacted, that (in effect) a horse so purchased must have been 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 that even such sale shall not take away the property of the owner, if within six months after the horse was stolen he puts in his claim before some magistrate in the place where the horse shall be found, and within forty days more after such claim shall prove his property, by the oath of two witnesses, and shall tender to the person in possession such price as the latter bona fide paid for the horse in market overt (b).] And incidentally it may be observed that, with regard to the shares and stocks of joint stock banking companies, it has been enacted, by the Banking Companies' (Shares) Act, 1867 (commonly called Leeman's Act), that all contracts, agreements, and tokens for the sale or transfer of such shares or stocks shall be null and void, unless the same shall set forth and designate in writing the distinguishing number or numbers of such shares or stocks (c),-a provision, however, which is generally ignored on the Stock Exchange, and which appears, at the most, to be applicable only to the sale of

(z) Section 36 of the Act of 1872; Singer Manufacturing Co. v. Clark (1880), 5 Ex. D. 37.

(a) 2 Inst. 713; Act, 1893, s. 22.

(b) Com. Dig. Market (E); Lee v. Bayes (1856), 18 C. B. 599.

(c) Seymour v. Bridge (1885), 14 Q. B. D. 460; Loring v. Davis (1886), 32 Ch. D. 625.

shares or stocks of which the vendor is not (at the time of the sale) possessed (d).

Implied warranties and conditions.-Upon the question, whether, upon the sale of personal chattels, the seller warrants his own title to the goods sold, it is to be remarked, that if a person sell goods and chattels as his own, and the price be paid, and the title prove deficient, he may, in general, be compelled to refund the money to the purchaser, on the ground of a total failure of the consideration; and a warranty of title is (and ever hath been) implied on every sale of goods, unless the circumstances of the sale are such as fairly to exclude the implication (e). The law as to this is now defined by the Sale of Goods Act, 1893, s. 12, which provides that, in the absence of contrary intention, there is an implied. condition that the seller has a right to sell, and implied warranties for quiet possession and freedom from undisclosed incumbrances. But with regard to the quality or fitness of the wares purchased, the vendor is not (according to our law) bound to answer, unless he expressly warrants them to be sound (f), or unless he knew them to be faulty, and yet represented them to be sound or used any art to disguise them (g)--the maxim in such cases being, in general, caveat emptor; and the application of this maxim is not affected by the circumstance, that the price was such as is usually given for a sound commodity. But upon a contract for the purchase of goods of any particular denomination, where the purchaser has no opportunity of inspecting them before they are delivered, there is, on the part of the seller, an implied warranty that they shall be of a quality saleable in the market under the denomination in question (h); and, whether there is

an opportunity of inspection by the buyer or not, the seller of an ordinary commodity manufactured in the particular instance by himself, and bought for a known and ordinary purpose, implicitly warrants that it has no latent defect to make it unfit for such known and ordinary purpose (). All these principles are recognized by, and re-formulated in, the Sale of Goods Act, 1893, ss. 1315 (). And upon a sale by sample there are implied conditions that the bulk shall correspond with the sample, that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, and that the goods shall be free from any defect not apparent in the sample, which would render them unmerchantable. Of course, there may in all cases be, if the parties so choose, an express warranty, either as to title or as to the soundness or other quality of the articles. And the use of the word warrant is not in any case essential; for a mere representation may amount to a warranty, if a warranty was thereby intended (1), which intention will be a question for the jury (m).

Sales by factors, etc.-In mercantile transactions, the sale of goods is frequently effected by means of factors or brokers, both being agents remunerated by a commission, though otherwise differing considerably in their capacities; for factors are entrusted with the possession of the goods, and are authorized to sell them in their own names, as the apparent owners, while brokers as such have no such possession or authority, but act avowedly as agents simply for the two contracting principals. Within the city of London, brokers were at one time required to be licensed or admitted by the lord mayor and aldermen; but this is

(i) Act 1893, s. 14; Drummond v. Van Ingen (1887), L. R. 12 App. Ca. 284.

(k) Gillespie Brothers v. Cheney,

[1896] 2 Q. B. 59; Varley v. Whipp, [1900] 1 Q. B. 513.

(7) Act 1893, s. 11. (m) Hopkins V. Tanqueray (1855), 15 C. B. 130.

no longer so, so that factors and brokers are now in that particular alike. Furthermore, neither factors nor brokers are, generally speaking, answerable for the due payment of the price by the party to whom they sell, for they are but agents for their principals (n); but if a factor makes sales on what is called the del credere system, he undertakes to be responsible for the price, receiving on that account a higher commission from his employer (o). And by the custom of merchants, or of any particular trade, the broker may also be personally responsible (p).

At common law, if a factor or broker, or any agent entrusted with the possession of goods, disposed of them to a stranger in a way not warranted by the nature of his authority, or if he pledged them when authorized only to sell, the title so derived from him would have been ineffectual against his principal (9); but, for the protection of third persons dealing with factors and other persons entrusted with the possession of goods, or with the written indicia of property therein, the Factors Acts, 1823 to 1877, were from time to time passed by the Legislature ; the short effect of which statutes was, that sales and mortgages effected by factors, with bona fide purchasers and bond fide mortgagees, were in general rendered valid as against the principals of such factors (r). And although all these last-mentioned Acts have now been repealed, their provisions have been re-enacted, with amendments, by the Factors Act, 1889; and this last-mentioned Act is of such importance in the law of mercantile contracts, that some detailed statement of its provisions may here be acceptable. The Act, then, after defining a "mercantile

(n) Perry v. Barnett (1885), 15 Q. B. D. 388.

(o) Couturier v. Hastie (1852), 8 Exch. 40, 56; 9 Exch. 102; Sutton v. Grey, [1894] 1 Q. B. 285.

(p) Pike v. Ongley (1887), 18 Q. B. D. 708.

(2) Daubigny v. Duval (1794), 5 T. R. 604.

(r) Sheppard v. The Union Bank of London (1862), 7 H. & N. 661; Kaltenbach v. Lewis (1885), L. R. 10 App. Ca. 617.