CHAPTER III. HORSES. as to sale of horses. The sale of horses was made the subject of special legis- Statutes lation more than three centuries ago: the reason assigned by Blackstone being "because a horse is so fleet an animal that the stealers of them may flee far off in a short space, and be out of the reach of the most industrious owner." A purchaser gains no property in a stolen horse unless he buys in a fair or market, in compliance with the provisions of the statutes of Philip and Mary and Elizabeth, to which we have alluded (1). These statutes provide that the horse which is for sale shall be openly exposed in the time of such fair or market, for one whole hour, 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 book-keeper of such fair or market; that toll be paid, if any be due, and if not, one penny to the book-keeper, who shall enter down the price, colour, and marks of the horse. The statute of Elizabeth enacts that the toll-keeper or book-keeper shall take upon himself "perfect knowledge" of the vendor, and "of his true Christian name, surname, and place of dwelling or residence"; or that the vendor shall bring to the keeper one sufficient and credible person that can testify that he knows the vendor, and in such case the name and residence of the person so testifying, as well as those of the vendor, are to be recorded in the book, and the "very true price or value" given for the horse; and in case of failure to comply with these provisions, the sale is to be void. Even if the horse be sold pursuant to these statutes, the property of the owner is not taken away, if within six months after the horse is stolen he puts in his claim before some magistrate where the horse shall be found, and within forty days more proves it to be his property by the oath of two witnesses, and tenders to the person in possession such price as he boná fide paid for him in market overt. () 2 & 3 Ph. & M. c. 7, and 31 Eliz. c. 12. Effect of statutes. The effect of these statutes was considered by Lord Blackburn, then Mr. Justice Blackburn, in the year 1873. The mare in question in the action had been turned out by the defendant in a public park, was found out of the park, and was then sold at public auction by the "pinner" of the park, who was unable to find the owner. After an intermediate sale she was sold in market overt to the plaintiff, and was subsequently claimed and taken possession of by the defendant. There was no proof that the formalities which the statute of Elizabeth requires upon the sale of horses at fairs and markets had been observed. The Court delivering judgment said :— : The onus of shewing that the formalities required by the 31 Eliz. c. 12, s. 2, have been observed at the sale of this mare lies upon the plaintiff. I shall not draw the inference that those formalities have been observed, it would be most unusual if the fact were so, and the effect of the statute is, that unless those formalities have been observed the sale confers no more title on the plaintiff against the defendant, the true owner, than if the sale had taken place out of market overt (1). Where the requisites of the statutes have not been duly observed the owner may retake his horse at any time wherever he finds him, or bring an action if he chooses (2). As many questions arise with regard to unsoundness in horses, the reader's attention may be well directed to the law as to unsoundness as settled by decisions. Warranty. A man who buys a horse warranted sound, must be taken as buying him for immediate use, and has a right to expect one capable of that use, and of being immediately put to any fair work the owner chooses. The rule as to unsoundness is that if at the time of sale the horse has any disease, which either actually does diminish the natural usefulness of the animal, so as to make him less capable of work of any description; or which, in its ordinary progress, will diminish the natural usefulness of the animal; or if the horse has, either from disease (whether such disease be congenital or arises subsequently to its birth), or from accident, undergone any alteration of structure, that either actually does at the time or in its ordinary effects () Moran v. Pitt, 42 L. J. Q. B. 47. (2) 2 & 3 Ph. & M. c. 7 (1555); and 31 Eliz. c. 12 (1589). The statutes generally extend to horses wrongfully taken, though not stolen. Chitty's Statutes, vol. iv. p. 305, et seq. Benjamin on Sale, pp. 13, 14, where it is pointed out that the provisions have been found so effective in putting an end to the mischief which they even intended to prevent, that there are very few modern cases on the subject. See Joseph v. Adkins, 2 Stark. 76; Lee v. Bayes, 18 C. P. 599. will diminish the natural usefulness of the horse, such a horse is unsound (1). Having thus sketched the law as to living horses, it remains to briefly notice the effect of very recent legislation with regard to the flesh of horses which are dead. 66 Horseflesh An Act which came into operation on the 29th of September, Sale of 1889, and which is to be cited as the Sale of Horseflesh, &c., Regulation Act" (2), provides that no person shall sell, offer, Act. expose, or keep for sale any horse-flesh for human food, elsewhere than in a shop, stall, or place over or upon which there shall be at all times painted, posted, or placed in legible characters of not less than four inches in length, and in a conspicuous position, and so as to be visible throughout the whole time, whether by night or day, during which such horse-flesh is being offered or exposed for sale, words indicating that horse-flesh is sold there. The next section provides that no person shall supply horseflesh for human food to any purchaser who has asked to be supplied with some meat other than horse-flesh, or with some compound article of food which is not ordinarily made of horseflesh. of "horseflesh." The word "horse-flesh is somewhat curiously defined by Definition the Act to include the flesh of asses and mules, and shall mean horse-flesh, cooked or uncooked, alone, accompanied by or mixed with any other substance; and its provisions are enforced by stringent provisions by which the offender can be summarily brought to justice. (1) Kiddell v. Burnand, 9 M. & W. 670; Coates v. Stephens, 2 M. & Rob. 137; and see Oliphant on Horses, pp. 71, et seq., and passim; and see in the same treatise an enumeration under nearly all the letters of the alphabet, and consideration of the various diseases to which horse-flesh is heir. In Yarmouth v. France, 19 Q. B. D. 647, it was held that a horse which injured the plaintiff was 'plant" used in the business of the defendant, and that the vice in the 66 horse was a "defect" in the condi- (2) 52 & 53 Vict. c. 11. Bills of General rule of law. Negotiaable instruments. CHAPTER IV. NEGOTIABLE INSTRUMENTS. The law with regard to negotiable instruments has been to a very large extent practically codified by the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), which came into operation on the 18th of August, 1882, and extends to Ireland and Scotland as well as to England (1). The general rule of the law of England is that no man can acquire a title to a chattel personal from any one who has himself no title to it, except only by sale in market overt, but the great exception to this rule is the negotiable instrument "being clearly transferable by any person holding it, so as by delivery thereof to give a good title to any person honestly acquiring it." The next question is, what instruments may with propriety be termed negotiable. And to this it may be answered that whenever an instrument is such that the legal right to the perty secured thereby passes from one man to another by the delivery thereof, it is, properly speaking, a negotiable instrument, and the title to it will vest in any person taking it bond fide, and for value, whatever may be the defects in the title of the person transferring it to him. An instrument is called negotiable when the legal right to the property secured by it passes by its delivery (2). pro "The general rule of law," said Mr. Justice Willes in an oftquoted case," is undoubted, that no one can transfer a better title than he himself possesses: Nemo dat quod non habet. To this there are some exceptions, one of which arises out of the rule of the law merchant as to negotiable instruments. These being part of the currency are subject to the same rule as money; and if such an instrument be transferred in good faith for value before it is overdue, it becomes available in the hands of the holder, notwithstanding fraud, which would have rendered it unavailable in the hands of a previous holder (3). "If a negotiable instrument remains current, even though it has been paid, there is nothing to prevent a person to whom it has been indorsed for value without knowledge that it has been paid from suing" (1). The object of the law merchant, said Byles, J., as to bills and Reason of notes made or become payable to bearer, is to secure their circu- the law. lation as money; therefore honest acquisition conveys title. To this despotic but necessary principle the ordinary rules of the common law are made to bend. Negligence in the maker of an instrument payable to bearer makes no difference in his liability to an honest holder for value; the instrument may be lost by the maker or stolen from him, still he must pay. The negligence of the holder, on the other hand, makes no difference in his title. However gross the holder's negligence, if it stop short of fraud he has a title (2). 66 of bill of exchange. A bill of exchange is defined by the Act as an unconditional Definition order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a certain sum in money to or to the order of a specified person, or to bearer" (3), and an instrument which does not comply with these conditions is not a bill of exchange. An inland bill is a bill which is, or on the face of it purports Inland bill. to be, both drawn and payable within the British Islands, or drawn within the British Islands upon some person resident therein. Any other bill is a foreign bill; but unless the Foreign contrary appear on the face of the bill the holder may treat it as bill. an inland bill (4). No particular form of words is necessary to render a Bill of Exchange valid. The following is an ordinary form : £100 08. Od. London, January 1, 1888. Three months after date pay to my order the sum of one hundred pounds. Value received. To Messrs. Thompson & Son. (1) Per Lord Esher, Glasscock v. Balls, 24 Q. B. D. 13, 15, see post, p. 266. (2) Swan v. North British Co., H. & C. 184; but see Earl of Sheffield v. Joint Stock Co., 13 App. Cas. 333, followed Simmons v. London Joint Stock Bank, W. N. (1890) 70, 221. (3) Sect. 3 (1) (2). An order to pay ont of a particular fund is not unconditional within the meaning of the VOL. I. WILLIAM SMITH. section; but an unqualified order to (') Bills of Exchange Act, 1882, S Form of bill of exchange. |