Hoffman v. Carow. tient investigation of the principle in all its bearings, and a due examination of the adjudged cases under which the doctrine is sought to be established, and of the facts and circumstances under which they were decided. The principle rests in the common law, that a felon does not acquire any title to the goods stolen, that he cannot transfer title even to a bona fide purchaser, and that the owner may take his goods which have been so stolen whereever he can find them. But it was very early discovered, that the commercial interests of the English nation required that some exception should be made to this general rule, and it was for that purpose that the courts in that kingdom held that the principle did not apply to sales made in market overt; and that sales made under such circumstances should convey a title to the bona fide purchaser, although the property might have been stolen. Even this exception was not found sufficiently broad to meet the wants of a trading community, in which it is absolutely necessary, for the well being of society, that a bona fide purchaser should be protected in his possession of personal property; and the exception was still further extended to sales made in public shops in the city of London. It is well to remark here, that in England such markets overt are held, either by prescription or by charter, and in no instance does the charter declare that sales made therein shall be conclusive; but the doctrine has arisen from the exigencies of trade, and has been adopted with a view to protect and favor the commercial interests of that country. But it is said by our courts, and with truth, that the principle of sales in market overt, as it exists in England, has no application to this country. Although this is admitted, yet I may be allowed to express my surprise, that, with our trade and commerce, we should have no similar doctrines or principles to protect it, but that, on the contrary, we should seek to establish a rule which governed England in the infancy of its commerce, which was adopted by its courts at a period when it had no manufactures, and its whole trade consisted in raising wool and exporting it to Flanders to be wrought into cloth, and which was repudiated by those courts at a pe Hoffman v. Carow. riod when the commercial relations of that country were not of one quarter the importance or value of those of our own country at the present time. My surprize has not been diminished, when I find that almost every commercial nation, ancient as well as modern, beside our own, had found it necessary to adopt some such doctrine. It was wisely provided by the laws of Athens, that all lawsuits relating to commerce should be carried on in the six months during which ships were not accustomed to put to sea, to the end that they might not lose their voyage by the impediment of legal prosecutions. On the contrary, we, although depending on foreign commerce for our prosperity to a much greater extent than ever the inhabitants of that ancient state did, hold a mere commercial agent liable in damages, at any time within six years, for an act honestly done by him in the course of business, and that even without a previous demand before the suit is instituted. In the Roman state, Ulpian speaks of the great privileges granted by the government to merchants, and gives for it the general reason, because navigation is of the greatest service to the state. In England, the plaintiff could not recover merely because the goods had been stolen, without that fact having been first judicially ascertained. Before the statute of the 21 Henry VIII., the owner was not entitled to a restitution of the stolen property, even upon the conviction of the felon on indictment, but could only obtain the same by prosecuting an appeal. After the enactment of that statute, appeals were disused, and were rendered unnecessary, because the court might, on the conviction of the felon, award restitution; and the courts are now in the habit of doing so. Our own statute, 2 R. S. 747, § 33, adopts the English statute on that point. In England, the action under the award of restitution cannot be maintained against any one except him who shall be in possession at the time of the conviction or attainder; and a demand is also requisite before the action. is brought. 6 Mod. 412. The reasonable inference from this statute, and the manner of proceeding, seems to be that in the case of stolen property, the title of the plaintiff, VOL. XXII. 38 Hoffman v. Carow. so far at least as to enable him to maintain trover, is not established before the conviction or attainder; at any rate, he is not before then entitled to a restitution under the statute. 2 Carr. & Payne, 41, and note. It does not appear from this case, that the felon was convicted of the felony charged before this suit was brought; but it does appear that the proceeds of the sale of the goods in question were paid over to him before he was even arrested. Our statute does not authorize the plaintiff to recover his goods from any one who may at any time have had the goods in his possession, but merely authorizes a recovery in general terms. The statute, 2 R. S. 747, § 34, seems to recognize the principle, that under certain circumstances, although the property has been stolen, a good title may be conveyed by a person not the owner, or at least, a title sufficient to protect a bona fide purchaser from an action of trover, for that section provides, that "if stolen property shall not be claimed by the owner thereof before the expiration of six months from the time any person shall have been convicted of stealing such property, the magistrate, sheriff, constable, or other officer, or person having the same in his custody, shall deliver such property to the county superintendents of the poor, on being paid the reasonable and necessary expenses incurred in the preservation thereof, to be appropriated to the use of the poor of such county." This enactment is made notwithstanding that by the general law of the land, the owner is entitled to six years within which to bring his action; and certainly the legislature cannot be presumed to have intended to authorize an illegal disposition of another's property. But there is a stronger and more express exception to this general principle, which is to be found in the case of negotiable bills of exchange and promissory notes where possession is prima facie evidence of property, and a bona fide holder can recover upon the same, although a bill or note came to him from a person who had stolen or robbed it from the owner, provided the bona fide holder took it innocently in the course of trade for a valuable consideration, and under circumstances of due caution. Suspicion must first be cast upon the title of the holder, by Hoffman v. Carow. showing that the paper had got into circulation by force or fraud, before the burden is thrown upon him of showing how he came by it, and what consideration he gave for it. This protection is, for the sake of trade, given to the holder of negotiable paper, who receives it fairly in the way of business; and why the same principle should not be applied to other personal property which passes through the hands of an individual fairly, in the course of trade and ' without notice, is difficult to imagine. If Lord Mansfield, with his clear and comprehensive mind, felt himself called upon, ex necessitate rei, to depart from the common law, and to establish the principle above stated in the case of negotiable commercial paper, it cannot for a moment be doubted, that if the judges who proceded him had not deemed it necessary to protect the innocent bona fide purchaser, by the doctrine of sales in market overt, that the great founder of English commercial law would have extended the same principle to all other property the subject of mercantile transaction. It is the boast of the common law, that it accommodates itself to the growing wants of a thriving commercial people; and it has not been in bravado merely, that this has been put forth; but in the hands of the venerated sages of the English bench, it has been practically applied. What did the age of Henry VIII., when the "Great Abridgement of the Statutes of the Realm" formed a single volume but little larger than a pocket Bible, know of the law of bills of exchange and promissory notes, or of the law of insurance. and shipping? Nothing. All this, and a thousand fold more, has been engrafted upon it by judicial legislation, until it has truly become the collected wisdom of ages. "Ita lex scripta est" was not regarded by those sages, as it is too much the case in our day, a sufficient answer to an argument however cogent, for the establishing a new principle arising from the wants of the community; but with them it advanced and expanded to meet those wants. A tame subserviency to precedent would have prevented all the improvements in that body of law, which have been the means of rendering it the admiration of the world; and we have Hoffman v. Carow. great cause for thankfulness, that such was not the course pursued in the country from which we have derived our institutions as well as our law. On the part of the defendant in error, it is contended that the goods in question having been stolen, the delivery conferred no authority on the plaintiffs in error to sell them ;. that such sale was a conversion; and that the payment of the proceeds to the felon, although without notice or knowledge of the felony, does not discharge the plaintiffs in error from responsibility to the right owner, who it is insisted has a right to reclaim his property, and to hold any one responsible who has assumed the right to dispose of it; and that the fact of the plaintiffs in error being auctioneers does not vary their responsibility. On the argument of these points a number of authorities were cited; in the examination of which a short time may not be unprofitably spent in order to ascertain what were the facts and reasons which led to their decision. Among the cases on which the council for the defendant in error relies to sustain the recovery against the plaintiffs in error, is that of Peer v. Humphrey, 2 Adol. & Ellis, 500, in which the property was stolen and sold to the defendant who was a bona fide purchaser. Two days after the sale, the plaintiff having discovered his property in the defendant's possession gave him notice that it had been stolen from him, and demanded possession, which was refused. Three months after this notice and demand, the defendant sold the property in market overt and appropriated the proceeds to his own use. The thief was convicted of the felony on the prosecution of the plaintiff; and afterwards, the plaintiff brought an action of trover and recovered against the defendant. Here it will be noted that the property having been sold by the defendant in market overt, the plaintiff could not follow it up, and could not recover of any other person than the defendant. No one, however, would feel much reluctance in sustaining such a judgment, for the defendant was possessed of the property at the time of the demand, and disposed of it three months after he had received notice that it had been stolen. So if the auctioneers in this case had sold the goods of Ca |