owner's authority (a), or to offer goods in pawn, not being able to give a satisfactory account of the means by which they came into the pawnor's possession, or of the owner's name and address (b), and empowers the Pawnbroker, on not receiving satisfactory replies, to seize and detain the pawn or the pawnor, or both. As to warranty of quality, it is clear that if, upon a contract of sale, the vendor says nothing, either by word or act, to induce the purchaser to believe the chattel he sells is of a particular quality, then caveat emptor, and there is no warranty of quality, for with regard to the goodness of the wares purchased, the vendor is not bound to answer (c). But here, again, the law will be prompt to lay hold of circumstances from which a warranty may be implied. Thus a sale by sample implies a warranty that the bulk will equal the sample (d); a sale of goods which the purchaser buys by description, without inspection or opportunity of inspection, imports a warranty that the goods shall be fairly merchantable under the description given (e); a sale of goods for a special purpose imports a warranty of fitness for that purpose (ƒ); a sale of goods bearing a known mercantile designation, by that designation warrants that the goods shall answer that designation, even though a sample has been approved and the goods correspond with it (g); or when goods so sold, have been adulterated by means not discoverable by an ordinary inspection of the sample (h). (a) 35 & 36 Vict., cap. 93, sec. 30, sub-sec. 1, and sec. 33. (c) 2 Bl. Com. 451. (d) Parker v. Palmer, 4 B. & Ald. 387. (e) Jones v. St. Just, L.R. 3 Q.B. 197, 37 L.J. 89, Q.B., 18 L.T. N.S. 208. (f) Randall v. Newson (in C.A.), L.R. 2 Q.B.D. 102, 46 L.J., Q.B. 257, 36 L.T. N.S. 164, 25 W.R. 313. (g) Josling v. Kingsford, 13 C.B. N.S. 447, 32 L.J. 94, C.P., 7 L.T. N.S. 790, 11 W.R. 377. (h) Mody v. Gregson, L.R. 4 Ex. 49 (Ex. Ch.), 38 L.J. 12 Ex., 19 L.T. N.S. 458, 17 W.R. 126 (where cotton goods had been adulterated with China clay). As the Pawnbrokers' Act contains no provisions as to warranty of quality by the pawnor, the Common Law rules already cited will apply. Breach of such a warranty does not entitle the party grieved to rescind the contract, but only to a reduction of price, or to damages, if the fault be not discovered till after the price is paid, or, in the case of pawns, after the loan has been advanced. But a stipulation as to quality or value may amount to a condition, on breach or non-fulfilment whereof the vendee [or pawnee] may reject the chattel altogether, as not being what he bargained for (a). And as the pawn is only a collateral security, the pawnee's right to recover the debt is unaffected, by the fact that he has made an over-advance, in reliance upon an untrue warranty of the quality of the security. A pawnor may be liable to criminal proceedings for a false warranty, as when he obtains from a Pawnbroker, upon an article which he falsely and fraudulently represents to be silver, knowing it to be of some base metal, a greater advance than would otherwise have been made, he is guilty of a false pretence within the statute, although the Pawnbroker have the opportunity of testing the article at the time (b). A false representation, amounting merely to an expression of opinion as to the quality of the goods sold or pledged, is not indictable, as where the alleged pretence was that certain spoons were of the best qualityequal to "Elkington's A" (meaning spoons made by Messrs. Elkington, and stamped by them with the letter A), that the foundations were of the best material, and that they had as much silver on them as "Elkington's (a) Heilbutt v. Hickson, L.R. 7 C.P. 438, 41 L.J. 228, C.P., 27 L.T. N.S. 356, 20 W.R. 1005; Conston v. Chapman, L.R. 2 H.L. Sc. 250. (b) Reg. v. Ball, Car. & Marsham, 249. A," although the jury expressly found that the prisoner had fraudulently and falsely misrepresented the quality of the spoons, and that if the prosecutor had known the real quality, he would have advanced no money on them, a large majority of the Judges held that the conviction could not be sustained (a). It will be observed that the representation was that the spoons were "equal to Elkington's "-not that they were Elkington'sor the result would have been different; for where defendant sold spurious blacking as "Everett's blacking," he was held to be indictable for the false pretence (b), and where a defendant had sold common pencils, worth about 4s. a gross, as drawing pencils, which he represented to be much in demand, and thereby obtained for them 48s. a gross from several small traders, this was held by the Recorder of London to be a false pretence within the statute (c). So, also, when the defendant obtained money for an article said by him to be made of 15 carat gold, when in fact it was only 6 carat gold, a conviction for obtaining money by false pretences was upheld by the Court of Criminal Appeal (d); and when the prisoner had sold as tea, a mixture three-fourths of which was not tea but some worthless stuff (e). A Pawnbroker, selling a chattel as an unredeemed pledge, does not impliedly warrant his title thereto. He is like a sheriff, who sells goods seized under a writ of fi. fa., as having been so seized by him, but without any other warranty. A Pawnbroker sold by auction, under the (a) Reg. v. Bryan, 1 Dears. & B., C.C., 265. (b) Reg. v. Dundas, 6 Cox, C.C., 380. (e) Reg. v. Foster, L.R. 2 Q.B.D. 301, 46 L.J. 128 M.C., 36 L.T. N.S. 34, 13 Cox C.C. 393. Pawnbrokers' Act of 1800 (a) a harp, which, as was afterwards ascertained, had been pledged by a person having no title thereto. In the auctioneer's, catalogue, the harp in question, and other pawned goods, were described in accordance with the requirements of the Act. The plaintiff, who bought the harp at this sale, was subsequently compelled to give it up to the real owner, whereupon he sued the Pawnbroker for breach of warranty of title, and for money due as on a consideration that had failed. But the Court held that a Pawnbroker so selling a forfeited pledge merely undertook that the chattel was the subject of a pledge and was irredeemable, that he knew of no defect in the title thereto, and that he sold only such right or title as he himself had. This being so, the plaintiff had got exactly what he had bought and paid for, and the consideration for the payment had not failed, either wholly or in part (6). In this case the pledge was within the Pawnbrokers' Act, but the precedent thereby established was afterwards followed in a pledge not within the Act (c). The law of Market Overt is chiefly important in pawn transactions from its operation upon otherwise invalid titles to personal property. If goods be stolen or fraudulently obtained, and afterwards sold in Market Overt, a purchaser who buys them there in good faith, and without notice, will acquire a good title, and the property therein. will vest in him, subject, however, to be devested, if he who originally obtained possession by wrong should afterwards be convicted on an indictment for felony with respect to the goods so purchased. On this subject, Blackstone says (d), "property may in some cases be transferred (a) 39 & 40 Geo. III., cap. 99, secs. 17 & 18. (c) Richardson v. Corsbie, in C.P., on appeal from the Bloomsbury County Court, Jan., 1876. (Not reported.) (d) 2 Com., 449. by sale, though the vendor hath none at all in the goods; 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 must soon be at an end. And therefore the general rule of law is, that all sales and contracts of anything vendible, in fairs or 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 informs us (a), "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 anything above the value of twenty pence, unless in open market, and directed every bargain and sale to be contracted in the presence of credible witnesses" (b). In London every day, except Sunday, is market day, and every shop in which goods are exposed publicly to sale, is market overt for such things only as the owner professes to trade in. Therefore, if plate be stolen and sold openly in a scrivener's shop on the market day, this sale should not change the property, but the party should have restitution, for a scrivener's shop is not market overt for plate; for none would search there for such a thing; and sic de similibus, &c. But if the sale is in a goldsmith's shop, such a sale must be open, and not behind a hanging, or a cupboard upon which his plate stands, so that one that stood or passed by the shop would not see it (c). But if my goods are stolen from me, and sold out of market overt, my property is not altered, and I may take them wherever I find them. And even in market overt, if the goods be the property of the King, such sale, (though regular in all other respects), will in no case bind him; though it binds (a) Cap. 1, sec. 3. (b) L.L. Ethel, 10, 12; L.L. Eadg. Wilk. 80. |