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and it was held that the plaintiff might recover from the defendant the value of the property, in trover. Lord Denman there says: "It is quite clear that no property ever passed to the defendant, or from the plaintiff. One difficulty, indeed, arises from Lord Kenyon's expression in Horwood v. Smith (a), that the property remains in dubio.' I think that either the expression was a hasty one, or it has been reported by mistake. A sale in market overt clearly gives a primâ facie title to the purchaser. Another difficulty arises from the case of Parker v. Patrick. There, indeed, the court distinguished between fraud and felony: but, in the argument for the present defendant, it is denied that such distinction can be taken; if so, the decision in that case was incorrect. And if the question of goods fraudulently obtained were before us, I cannot help thinking that the case of Patrick v. Parker would not bear examination. The Earl of Bristol v. Wilsmore seems to me to be quite inconsistent with it." [Williams, J. In Peer v. Humphrey, the defendant bought the oxen of the thief. Cresswell, J. The distinction between fraud and felony is this, in the one case, the man who parts with the property makes a contract in fact; in the other, he does nothing.] In Noble v. Adams (b), it was expressly held, that the obtaining of goods upon false pretences, under colour of purchasing them, does not change the property. [Cresswell, J. There the action was brought by the man who had perpetrated the fraud: the report is by no means satisfactory.] If a sale from A. to B. passes no property, how can a sale by B. pass property to C.? [Cresswell, J. Is it possible that the property in goods can pass by a sale which has been fraudulently obtained?] Under certain circumstances, undoubtedly, it may the vendor may choose to affirm

(a) 2 T. R. 755.

(b) 7 Taunt. 59.,2 Marsh, 366.

the sale; but, unless he does some act to affirm the sale, it is void. There is a semblance of a contract here; but there is not the assent of both minds to the same thing. [Cresswell, J. If your argument is correct, the original vendors might maintain trover for the iron, even though it had passed through the hands of a dozen successive purchasers.] There can be no objection to that. [Cresswell, J. Lord Kenyon thought otherwise in Horwood v. Smith.] In Campbell v. Fleming (a), Patteson, J., says: "No contract can arise out of a fraud; and an action brought upon a supposed contract, which is shewn to have arisen from fraud, may be resisted."

CRESSWELL, J. I am of opinion that this rule must be discharged. It appears that the plaintiff made a contract with Parker for the purchase of fifty tons of iron. It may be very doubtful whether Parker had the iron at the time. But afterwards (or before, as the case may be) he purchased fifty tons of iron from the defendants, giving them in payment a bill purporting to be accepted by a supposed seedsman at Rochester. It turned out that that was a fictitious bill; no such person as that described as the acceptor being to be found at Rochester. The transaction on the part of Parker was altogether fraudulent. Having thus by fraud induced the defendants to trust him, Parker sells the iron. to the plaintiff, and gives him a delivery order, which is acted upon by the defendants, who send the iron to the plaintiff's wharf by their own lighterman. Having received the iron alongside his wharf, the plaintiff pays Parker for it; and the defendants afterwards, having in the interim discovered that they had been defrauded, seize the iron. The question is, whether the plaintiff,

(a) 1 Ad. & E. 40.

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who it is admitted acted bonâ fide, by this purchase obtained a property in the iron. It seems to me that the case of Parker v. Patrick, as explained in Load v. Green, well warrants us in discharging this rule. Parke, B., there says that that case may be supported on the ground that the transaction is not absolutely void, except at the option of the seller; that he may elect to treat it as a contract, and he must do the contrary before the buyer has acted as if it were such, and re-sold the goods to a third party; and that Wright v. Lawes is an authority to the same effect. I think it is. And I see no difficulty or hardship in so deciding. One of two innocent parties must suffer and surely it is more just that the burthen should fall on the defendants, who were guilty of negligence in parting with their goods upon the faith of a piece of paper which a little inquiry would have shewn to be worthless, rather than upon the plaintiff, who trusted to the possession of the goods themselves. Though Parker could not have enforced the contract, I see no reason why the plaintiff should not.

WILLIAMS, J. I am of the same opinion. I think the observations of Parke, B., in Load v. Green, are founded on good law, and suffice to enable us to decide this case; not that I think Parker v. Patrick can be so explained. I venture to think that the court were wrong in Parker v. Patrick, not because they take a distinction between felony and fraud, but because they assume, that, even if it had been a case of felony, the plaintiff must have relied upon the statute 21 H. 8. c. 11., to sustain his action. In that I think the court took an erroneous view of the law. The case may, nevertheless, be supported in the way put by my brother Parke. As between these parties, I am clearly of opinion that the property in the iron in question passed by the sale from

the defendants to Parker, and by Parker to the plaintiff. The general rule of the law of England undoubtedly is, as is said by Abbott, C. J., in Dyer v. Pearson (a), "that a man who has no authority to sell, cannot, by making a sale, transfer the property to another." But to that rule there are many exceptions; and this is one of them.

TALFOURD, J. I also am of opinion, as well upon principle as upon authority, that this rule should be discharged. There is a very obvious distinction between. the cases of goods obtained by felony and fraud or false pretences in the one case, the owner of the goods has no intention to part with his property; in the other, he has. A contract for the sale of goods, though obtained by fraud, is perfectly good, if the party defrauded thinks fit to ratify it. It appears to me that the defendants here intentionally parted with their property in the iron when they caused it to be delivered to the plaintiff; and it is not competent to them, after a third party has by their act been induced to part with his money, to turn round and say that the contract as between them and Parker was null and void, and that Parker had no property, and therefore could pass none to the plaintiff. It appears to me that the doctrine of Parke, B., in Load v. Green is well warranted by the authorities.

JERVIS, C. J. At the trial, I acted upon the opinion thrown out by my brother Parke, in Load v. Green; and I am glad to find that the rest of the court agree with me in thinking that that opinion is reconcilable with the authorities. The question is one of considerable importance, as affecting the mercantile transactions of this country: for, if the argument urged on the part

(u) 3 B. & C. 38.

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of the defendants were well founded, goods at all tainted by fraud might be followed through any number of boná fide purchasers, -a most inconvenient, and, as it strikes me, a most absurd doctrine. A vendor, who does not choose to avail himself of means of inquiry, would thus, by trusting the vendee, be giving him unlimited means of defrauding the rest of the world. It appears to me that the cases of Davis v. Morrison and Parker v. Patrick are well supported on the ground suggested by my brother Parke. All the cases relied upon by the defendants are cases where the transaction has been questioned as between the immediate parties. The principle relied on by Parke, B., in Load v. Green was again affirmed,— though, perhaps, a little too extensively,-by Lord Abinger, in Sheppard v. Shoolbred.

Rule discharged.

END OF EASTER TERM.

MEMORANDA.

In Hilary Vacation, 1851, the Right Hon. Lord Langdale retired from the office of Master of the Rolls, and was succeeded by Sir John Romilly, Her Majesty's Attorney-General.

Sir Alexander James Edmund Cockburn, Knt., Her Majesty's Solicitor-General, was promoted to the office of Attorney-General.

William Page Wood, Esq., one of Her Majesty's Counsel, was appointed Her Majesty's Solicitor-General, and thereupon received the honor of Knighthood.

In Easter Term last, George James Turner, Esq., one of Her Majesty's Counsel, was appointed to the office of Vice-Chancellor, vacant by the resignation of Sir James Wigram.

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