The owner of stolen goods may recover them even from a bonâ Chap. VI. fide purchaser provided he has not bought them in market overt, and it is not necessary for the owner to prosecute the thief to conviction before he can recover them in an action against an innocent third person (p); for the obligation which the law is said to impose (q) on a person to prosecute the party who has stolen his goods before bringing his action, does not apply where the action is against a third party innocent of the felony (r). As a general rule a purchaser of a chattel out of market overt Goods obtained cannot acquire a better title than his vendor. This rule however through fraud. must be qualified, for when a vendee obtains possession of a chattel, with the intention by the vendor to transfer both the property and possession, although the vendee has committed a false and fraudulent misrepresentation in order to effect the contract or obtain the possession, the property vests in the vendee until the vendor has done some act to disaffirm the transaction; and the legal consequence is, that if before the disaffirmance, the fraudulent vendee has transferred either the whole or a partial interest in the chattel to an innocent transferee, the title of such transferee is good against the vendor (s). A contract for the sale of goods, obtained by fraud on the part of the purchaser, is void only at the election of the vendor; and it is too late to declare such election after the goods have passed into the hands of a bona fide purchaser (t); for the established principle is, that fraud only gives a right to avoid a purchase, that the property vests until avoided, and that all mesne dispositions to persons not parties to, or at least not cognizant of the fraud are valid (u). Where, however, the person selling the goods has obtained them by false pretences, there is no contract to pass the property, and consequently the innocent purchaser can obtain no title to them as against the true owner (v). Thus the plaintiffs who were (p) Lee v. Bayes or Robinson, 18 C. B. 599; 25 L. J. C. P. 249. (q) See Wells v. Abrahams, L. R. 7 Q. B. 554; 41 L. J. Q. B. 306; Osborne v. Gillett, L. R. 8 Ex. 88. It is somewhat doubtful on the authority of the above cases whether the right of action is suspended by the felony, even when the action is brought against the felon himself. The maxim, that "no one can avail him self of his own wrong," would probably apply to a case where an allegation of felony was pleaded as a defence to an action. (r) White v. Spettigue, 13 M. & W. 603; 14 L. J. Ex. 99. (s) Pease v. Gloahee, L. R. 1 P. C. 219; Babcock v. Lawson, 4 Q. B. D. 394; 48 L. J. Q. B. 524. (t) White v. Garden, 10 C. B. 919; 20 L. J. C. P. 166. (u) Attenborough v. St. Katharine's Dock Co., 3 C. P. D. 450; 47 L. J. C. P. 763; Stevenson v. Newnham, 13 C. B. 285; 22 L. J. C. P. 110. (v) Hollins v. Fowler, L. R. 7 H. L. 757; Kingsford v. Merry, 1 H. & N. 503; 26 L. J. Ex. 83; Hardman v. Booth, 1 H. & C. 803. Chap. VI. manufacturers at Belfast, received an order for goods signed "A. Blenkarn and Co.," 37, Wood Street, London, the word Blenkarn being so written as to resemble "Blenkiron." The goods were forwarded and addressed to "A. Blenkiron & Co.," 37, Wood Street, the plaintiffs being under the belief that they were in correspondence with the well-known firm of" Blenkiron and Sons," who carried on business at 123, Wood Street. The goods were ordered and received by Alfred Blenkarn, who had an office at 37, Wood Street, and the plaintiffs were induced by his fraud to send the goods to him. The plaintiffs, on discovering the fraud, prosecuted Blenkarn for obtaining goods by false pretences, and he was found guilty. Before his conviction he had sold part of the goods to the defendants, who had no knowledge of the fraud, and they had resold them to other persons; it was held that there was no valid contract for the sale of the goods by the plaintiffs, and that they were entitled to recover them from the defendants in an action for the conversion (x). Title to chattel by finding. Mere possession is sufficient against a wrongdoer (y), and therefore the finder of an article is entitled to the possession of it against everyone except the real owner, and the place in which a lost article is found constitutes no exception to this rule of law. Thus a person entering a shop found on the floor a bundle of banknotes, which had been accidentally dropped there by a stranger. The party who lost them could not be found. It was held, that as against everyone but the true owner, the property in the notes belonged to the finder, and not to the owner of the shop, notwithstanding that the finder had immediately on picking up the bundle, handed it over to the latter with a view to its being restored to the true owner if he should return. And it was also held that the fact that the owner of the shop had advertised the finding in the newspapers, was no evidence that the finder intended to waive his title, having before he demanded the notes back offered to repay the expense of the advertisement, and to indemnify the shopkeeper against any claim (2). Where a banknote or negotiable instrument, such as a bill of exchange or pro (x) Cundy v. Lindsay, 3 App. Cas. 459; 47 L. J. Q. B. (H. L.) 481. (y) Armory v. Delamirie, 1 Strange, 504; 1 Smith, L. C. (z) Bridges v. Hawkesworth, 21 L. J. Q. B. 75, Lost and stolen notes and negotiable securities. missory note, has been lost, and the finder refuses on demand to Chap. VI. restore it to the rightful owner, he is guilty of a conversion (a). Property in a banknote passes like that in cash, by delivery, and a party taking it bona fide and for value, is entitled to retain it as against the former owner, from whom it has been stolen (b). Thus where a money-changer in Paris twelve months after he had received notice of robbery of banknotes at Liverpool, took one of the stolen notes (for 500l.) at Paris giving cash for it, less the current rate of exchange, from a stranger whom he merely required to produce his passport and write his name on the back of the note; it was held in an action against the Bank by the moneychanger, that although he might have been guilty of negligence in not attending to the notice, yet that was not sufficient to affect his title to the note which he had taken bonâ fide, and for which he had given full value (c). Mere negligence is not sufficient to defeat the title of the holder of a negotiable security for which he has given value (d), though it may be evidence of mala fides (dd). The presumption of law is that the title to a banknote or any other negotiable instrument is in the holder (e), the onus therefore lies upon the party impeaching such title to show that the possession was obtained malâ fide (f). Where a person takes a note or negotiable security with knowledge of the infirmity of title in the transferor, or gives no value, or much less than the real value, he will have no better title than the party from whom he received it (g). Where a person, in reply to a demand for the delivery of a bill of exchange, said he could not give it because it was burnt, it was held to be evidence of a conversion by him of the bill (h). Scrip issued in England by the agent of a foreign government, by which the holder is to be entitled on payment in full of the instalments due from him, to delivery by the agent of definitive bonds of the foreign government on their arrival in this country, and which, by the usage of bankers and dealers in públic (a) See Solomons v. Bank of England, 13 East, 135; Grant v. Vaughan, 3 Burr. 1516; Collins v. Martin, 3 B. & P. 649. (b) Miller v. Race, 1 Burr. 452; 1 Sm. L. C. (c) Raphael v. Bank of England, 17 C. B. 161; 25 L. J. C. P. 33; Lawson v. Weston, 4 Esp. 66; Gill v. Cubitt, 3 B. & C. 466. (d) Backhouse v. Harrison, 5 B. & Ad. 1098. (dd) Goodman v. Harvey, 4 Ad. & E. 876. (g) Burn v. Morris, 2 C. & M. 579. Chap. VI. securities, is transferable by mere delivery, passes by such delivery to a bona fide holder for value without title (i). Foreign bonds pass by mere delivery, and no action for their conversion will lie against a bona fide holder for value (k). Property in halves of bank notes. Title by accession. By gift. The property in the halves of banknotes, sent in payment of a debt due to the receiver from a third person, with an intention on the part of both sender and receiver that the other halves are to follow, remains in the sender until he sends the second halves; the payment being until then inchoate and conditional. It is therefore open to the sender, at any time before sending the second halves, to disaffirm the transaction, and re-demand the first halves from the receiver, who is liable to an action for refusing to return them (1). If one wrongfully deprives me of my chattel, and either alters or improves it himself, or gives it to another to do so, I may retake possession of it without paying for the alteration or improvements. Thus, where a man wrongfully took away a carriage and left it with a coachman for repairs, the owner of the carriage was held to be entitled to have back his carriage, without first paying for the repairs (m). The law on the subject of title by accretion is thus laid down by Coke, C.J., who observes, "The law is that if J. T. have a heap of corn and J. D. will intermingle his corn with the corn of J. T. the latter shall have all the corn, because this was done by J. D. of his own wrong" (n). A mere verbal gift of a chattel without delivery does not give the property to the donee (o), neither does the property pass, even when the chattel is in the actual possession of the person to whom the verbal gift is made (p). There must be either an actual manual delivery, or where the article is too bulky, a constructive delivery or deed of gift to vest the property of the chattel in the donee (7). "It requires," observes Mellish, L.J., "the assent of both minds to make a gift, as it does to make a contract" (r), though in the case of a gift slighter evidence is required to show that a person has assented to what is obviously for his benefit, than in the case of a (i) Goodwin v. Robarts, L. R. 10 Ex. (k) Gorgier v. Micville, 3 B. & C. 45; (1) Smith v. Mundy, 3 E. & B. 22; 29 (m) Hiscox v. Greenwood, 4 Esp. 174. (n) Warde v. Eyre, 2 Buls. 323. (0) Irons v. Smallpiece, 2 B. & Ald. 551. (p) Shower v. Pilch, 4 Ex. 478; 19 L. J. Ex. 113. (q) Barton v. Gainer, 3 H. & N. 389; 27 L. J. Ex. 390. (r) Hill v. Wilson, L. R. 8 Ch. 888. contract which may be to his prejudice. Where a policy of Chap. VI. insurance had been given by an intestate to his mother, and although there had been no assignment of the policy, and the right to the money secured by it might not be affected, it was held that the right to the document itself passed by the gift, and the administratrix could not recover it in an action of detinue against the mother (s). causâ. A donatio mortis causâ is where a person in his last sickness, Donatio mortis apprehending his dissolution near, delivers to another the possession of any chattel to keep in case of his decease. To render a donatio mortis causâ effectual, it must be accompanied by the delivery of the chattel, and if it be in action and not in possession, the delivery of the instrument, such as a bond, bill (t), or note (u), by which it is secured. A cheque payable to bearer will not be a valid gift (r), but a cheque payable to order of donee, and which has been paid away for a valuable consideration, will (y). The title of an administrator to the goods of the intestate Title of a Imirelates back to the time of the death, thus an action can be maintained by an administrator for the wrongful conversion of the goods of the intestate between the time of his death, and the grant of letters of administration (a). An administrator can sue a person who has made himself an executor de son tort for a conversion of the goods of the deceased between the time of the death and the taking out of letters of administration (b). By the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52, s. 54, "immediately on a debtor being adjudged bankrupt, the property of the bankrupt shall vest in the trustee" (c). Such property includes (s. 44), "all goods, being at the commencement of the bankruptcy in the possession, order, or disposition of the bankrupt, in his trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof; provided that things in action, other than debts (s) Rummens v. Hare, 1 Ex. D. (C. A.) 169. (t) Amis v. Witt, 33 Beav. 619. (u) Moore v. Moore, L. R. 18 Eq. 474; 43 L. J. Ch. 617, in which case it was also held that railway stock cannot be made the subject of donatio mortis causa. Rankin v. Weguelin, 27 Beav. 309. (x) Hewitt v. Kaye, L. R. 6 E1. 198; 37 L. J. Ch. 633. (y) Rolls v. Pearce, L. R. 5 Ch. D. (a) Foster v. Bates, 12 M. & W. 226. (e) Until a trustee is appointed, the nistrator. Title of trustee bankrupt. to goods of |