should he exercise dominion over them as owner, and this before the wrongful taker of them has been prosecuted (a), and even after he has been tried and acquitted (b). The custom of Market Overt applies to sales, and (independently of statute) (c), not to pawns (d). Therefore a pawnee cannot retain a stolen chattel, unless, after the larceny, it has been bought in Market Overt by some boná fide purchaser, and pledged by him or some one claiming title through him. There is no Market Overt for ships, as they do not pass by delivery. Hence it would seem that they must be mortgaged rather than pawned (e). Courts of Common Law have from time to time been empowered to order restitution in a summary way, of goods included in any indictment for felonious stealing (ƒ), the last of which is the Act for Consolidating the Law of Larceny (g), which enacts (h) that if any person who is guilty of any felony or misdemeanour mentioned in the Act, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving, any chattels, 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; and the Court before which any person shall be tried, shall have power to award from time to time, writs of restitution for the said property, or to order the restitution thereof in a (a) Per Pollock, C.B., in Neate v. Harding, 6 Ex., 349, 350; Per Ellenborough, C.J., in Taylor v. Plumer, 3 M. & S., 562; Singer Manufacturing Co. v. Clark, L.R. 5 Ex. D. 37, 49 L.J. 224 Ex., 41 L.T. N.S. 591, 28 W.R. 170. (b) Packer v. Gillies, 2 Camp. 336 n.; Cheesman v. Exall, 6 Ex., 341. (c) 1 Jac. 1, cap. 21, sec. 5 (now repealed), provided that no pawn of stolen goods in London or Westminster should change the property. (d) Jenkins, R. 83, Hartop v. Hoare, 2 Stra. 1187. (e) McLellan v. Grinn, L.R. 2 C.A. 282. (ƒ) 21 Heu. 8, cap. 11, re-enacted by 7 & 8 Geo. 4, cap. 29, sec. 57. summary manner, provided that if it shall appear before award or order, that any valuable security has been paid or discharged by some person liable to the payment thereof, or being a negotiable instrument, has been boná fide taken and received by transfer and delivery for a just and valuable consideration without notice of the theft, &c., the Court shall not order the restitution of such security. There is also a second proviso, intended to protect persons who receive goods from factors, under circumstances making their title valid under the Factors' Acts (a). But it has been held that neither by this proviso, nor by the Factors' Acts, is the Court prevented from ordering the restitution of goods pledged or sold by an agent, who has been convicted of feloniously stealing them from his principal (b), because the conviction revests the property in the true owner, and leaves the Court no option but to order restitution (c). A Justice of the Peace may grant a search warrant for property which a credible person, on oath, satisfies him he has reason to suspect has been stolen or otherwise fraudulently obtained. A positive oath that larceny has been committed, is not necessary (d). Such a warrant may be issued on Sunday (e). By several statutes, very extensive powers of ordering restitution have been conferred upon Courts of Summary Jurisdiction. Thus if goods be stolen, (a) 4 Geo. 4, cap. 83; 6 Geo. 4, cap. 94; 5 & 6 Vict., cap. 39; 40 & 41 Vict., cap. 39. (b) Per Commissioner Kerr, in Reg. v. Wollez and Bliss, re Hart, 8 Cox's C.C. 337. (c) From this decision it would seem that the learned Commissioner regarded 24 & 25 Vict., cap. 96, sec. 100, as impliedly repealing so much 5 & 6 Vict., cap. 39, as makes a pledge by "an agent intrusted" binding upon the principal. (d) Elsee v. Smith, 1 D. & R. 97, 2 Chit. 304. (e) 11 & 12 Vict., cap. 42, sec. 4. unlawfully obtained, or unlawfully pawned within the Metropolitan District, the Police Magistrate for the District may, on complaint, compel the appearance of the pawnee, and the production of the goods, and order their delivery or payment of their value to the owner with or without payment (a), but without prejudice to the pawnee's right to sue for the same within six months. He may make similar orders on summary convictions for illegal pawning, and also where goods are produced before issue of a search warrant (b). Sec. 29 extends this power to goods charged to have been stolen or fraudulently obtained, and which are in the possession of any constable by virtue of a warrant of a magistrate, or in prosecution of any charge of felony or misdemeanour in regard to the obtaining thereof, and the guilty party cannot be found or has been summarily convicted, or discharged, or acquitted, or when he is found guilty, but the property so in custody has not been included in any indictment on which he has been found guilty (c). If the rightful owner of such goods cannot be found, the magistrate may make such order as seems to him meet, subject to the like saving of the rights of the pawnee as is contained in sec. 27. The magistrate may apply the goods for the benefit of the Police Superannuation Fund, if they remain unclaimed for twelve months (d). Justices in Petty Sessions, (e) or a Stipendiary Magistrate sitting alone (f) under the Criminal Justice Act, (a) 2 & 3 Vict., cap. 71, sec. 27. (b) Ibid, sec. 28. (c) In Committee on 24 & 25 Vict., cap. 96, a clause giving similar powers to Courts of Oyer and Terminer, was inserted by the Lords, but struck out by the Commons. Hence powers refused to Judges of Assize, are constantly exercised by Police and other Magistrates. (d) 2 & 3 Vict., cap. 71, sec. 30. (e) 18 & 19 Vict., cap. 126, secs. 1 & 8. may make such orders for the restitution of property stolen or fraudulently obtained as might have been made by the Court before which the offender would, but for that act, have been tried. A Pawnbroker or other person to whom any property shall be offered to be sold, pawned, or delivered in the Metropolitan Police District, if he shall have reasonable cause to suspect that any such offence has been committed with respect to such property, or that the same or any part thereof has been stolen or otherwise unlawfully obtained, is authorized, and if in his power is required, to apprehend and detain the party, and as soon as may be, to deliver him into the custody of a constable, together with such property, to be dealt with according to law (a). Mr. Oke considered that "the power given to Justices by 39 and 40 Geo. 3, cap. 99, sec. 8, to issue a warrant to apprehend any person unlawfully pawning the goods of others is additional to that given by Jervis's Act (b), which authorizes either a summons or a warrant to be issued in the first instance on an information for an offence. Also that it is the practice in London verbally to order the goods pawned, when produced at the hearing of such charges as are mentioned above, to be delivered by the Pawnbroker to the owner, when the person pawning is convicted. The sum ordered for their value, if paid, is handed to the Pawnbroker as the party injured" (c). The charge must be of "knowingly and designedly" pawning, to give the magistrate jurisdiction. It is not sufficient that the complainant's information should say that he believed or suspected that the goods had been illegally pawned (d). (a) 2 & 3 Vict., cap. 47, sec. 66. (b) 11 & 12 Vict., cap. 43. (d) Tate v. Chambers, 3 N. & M., M.C., 302. Orders of restitution are usually made by Courts of Oyer and Terminer as of course upon convictions for felony, because no property ever passed, or was intended to pass, from the owner to the thief, and by consequence, none can pass from the thief to a bona fide vendee or pawnee. But it is not so clear that such orders ought to be made when the owner, having been induced to enter into a contract of sale by means of fraud, has parted with the possession of his property, fully intending to part with the ownership also. It would seem that the same principle should govern the Criminal and the Civil Court, and that the original owner should only be entitled to recover such property by orders of restitution, subject to the rights of subsequent purchasers or pawnees, in good faith and without notice of the fraud (a). Even as against the knave who has cheated him, a person induced by fraud to enter into a contract, cannot disaffirm the contract, unless both parties can be put in the same position as before (b). A fortiori then, ought an innocent party to get the benefit of a principle so sound and so equitable, and which has moreover been very recently recognized by a considered judgment of the Queen's Bench Division (c), where the defendant had been induced by the fraud of one W. to sell him a number of sheep, which W. promptly re-sold to the plaintiff, who bought them in good faith, without knowledge or notice of the fraud, and in a market place, but not in Market Overt. The defendant having discovered the fraud, seized the sheep (a) Babcock v. Lawson, L.R. 4 Q.B.D. 394, 48 L.J., Q.B.D. 524, 27 W.R. 886, affirmed in C.A. 5 Q.B.D. 284, 49 L.J. 408 Q.B.D., 42 L.T. N.S. 289, 27 W.R. 591. (b) Urquhart v. Macpherson, L.R. 3 A.C. 831 (P.C.) (c) In Moyce v. Newington, L.R. 4 Q.B.D. 32, 48 L.J., 125 Q.B.D., 39 L.T., N.S. 535, 27 W.R. 319. See also Schofield v. Templer, 1 John 155, 28 L.J., 452 Ch. (and on appeal), 4 D.G. & J. 429; Morison v. Universal Marine Insurance Co., L.R. 8, Ex. 197, 42 L.J., 115 Ex. 21 W.R., 774 (Ex. Ch.). |