with a case which ranges itself under a completely different chapter of law-the case, namely, in which the contract never comes into existence" (m), and "where the possession does not pass by contract, but by wrong, and is trespassory" (n). His title has not been avoided.-In Clough v. London and North Western Ry. Co. (o), the principles relating to a seller's election to affirm or avoid the voidable transaction were laid down as follows(p): (1) A seller has the right of election at any time after his knowledge of the fraud, and until he expressly or impliedly affirms the contract; (2) So long as he does not affirm he may keep the question open, subject to the rights of a bond fide sub-buyer intervening; (3) A seller may make his election by plea, and is not bound to any antecedent act in pais. And the avoidance of the contract takes effect by virtue of the seller's determination of his election, and from the time of communication thereof to the other party (q). Cases which represent the principle laid down in this section may also, it would seem, fall under s. 25 (2), infra, which protects sub-sales by buyers, in possession of the goods or documents, to persons who buy in good faith and without notice "of any lien, or other right of the original seller in respect of the goods." The present section says, "notice of the seller's defect of title." There seems no reason why a "right in respect of the goods," under s. 25 (2), should not include a right to resume possession of them by avoidance of the contract under this section, in a case where the buyer has, under the former section, "bought" the goods (r); but s. 25 (2) would not apply (whereas the present section would) to any case where the goods had not been delivered. ILLUSTRATIONS. 1. A. sells iron to B., who pays him by a bill drawn upon a fictitious person. B. then re-sells to C., and A. then repudiates the contract. Kingsford v. Merry (1856), 11 Ex. 577; and the distinction between the two classes of cases is well shown in the American case of Edmunds v. Merch. Despatch Trans. Co., 135 Mass. 283. (m) Cundy v. Lindsay (1878), 3 Ap. Ca. at p. 466. Other cases are Higgons v. Burton (1857), 26 L. J. Ex. 342, and Hardman v. Booth (1863), 1 H. & C. 803. (n) Pollock & Wright on Poss., P. 254. (0) (1871), L. R. 7 Ex. 26. (p) See Benj. p. 421. (9) Benj. p. 422, quoting Reese River Mining Co. v. Smith (1869), L. R. 4 H. L. 64. (r) See Lee v. Butler, [1893] 2 Q. B. 318; Helby v. Matthews, [1894] 2 Q. B. 262; see per Smith, L.J., at p. 269. S. 23. S. 23. Revesting of property in of offender. C. has the ownership of the iron. White v. Garden (1851), 10 C. B. 919. 2. B. orders goods of A., signing his name so as to resemble the signature of C., a well-known tradesman, but giving his own address. A. sends the goods to B.'s premises invoiced to C., whose address he does not know. B. re-sells to D. D. is liable to A. for the conversion of the goods, as-the contract between A. and B. being void, as A. never intended to deal with B.-no ownership of the goods passed to B. Cundy v. Lindsay (1878), 3 Ap. Ca. 459. 24. (1) Where goods have been stolen and the stolen goods offender is prosecuted to conviction, the property in on conviction the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise. S. 24 (1). (2.) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender. (3.) The provisions of this section do not apply to Scotland. This section is based upon the 24 & 25 Vict. c. 96 (the Larceny Act, 1861), s. 100 (included in the Appendix of Statutes, post, p. 323), which re-enacted and amplified the 7 & 8 Geo. 4, c. 29, s. 57, which latter statute, for the first time, extended the law as to restitution to cases of false pretences. The earlier statute, 21 Hen. 8, c. 11, only applied to goods stolen, and the law under the present section is now as it was under the statute of Hen. 8, by virtue of sub-s. 2 hereunder. The effect of the section may be shortly summarized as follows: (1.) On the conviction of the thief, the property revests in the original owner: [sub-s. 1] (2.) Secus, on the conviction of the offender by other means than larceny: [sub-s. 2] (3.) Where the property does not pass to the person in possession of the goods, the Act is not required; e. g., when the goods are sold to him out of market overt; or if, as in Cundy v. Lindsay (s), there was no contract of sale with him at all (t). And the offender is prosecuted to conviction.-The policy of the law was that owners of stolen goods should be encouraged, on grounds of public policy, to prosecute the offender. "The legislature thought that, for the general public benefit, they ought to prefer the original owner [i. e., to the sub-buyer], if he prosecuted the thief to conviction, but only in that case" (u). Thus, the 21 Hen. 8, c. 11, laid down the condition that the conviction should be "by reason of evidence given by the party so robbed." So, also, the 7 & 8 Geo. 4, c. 29, s. 57, says: "To encourage the prosecution of offenders, be it enacted that, on indictment by or on behalf of the owner And the Larceny Act says, 66 'by or on behalf of the owner of the property, or his executor or administrator." It will be noticed that no such words, or similar words, are to be found with reference to prosecution in this section; and it would seem that the condition, that the owner or his representative should prosecute the thief, contained in the Larceny Act, is repealed by implication. Though both this Act and the Larceny Act, 1861, are affirmative statutes, and therefore prima facie not inconsistent with each other, yet it is difficult to see a greater inconsistency than that of a proposition stated simpliciter (as in this Act), as compared with a similar proposition in the earlier Act stated only sub modo (v). The property in the goods so stolen.-Though all the statutes dealing with this subject only provided that the "goods" or "the property" should be "restored" to the owner, yet it has been long decided that these words mean the "right of property" in the goods, and that such property revested even without an order of restitution (x). And it was early decided, even before the Larceny Act, that the proceeds of the goods could be restored, as well as the goods themselves (y). The Larcency Act itself, moreover, includes the "proceeds" in the term "property" in the interpretation clause (z). (s) (1878), 3 Ap. Ca. 459. (t) Per Esher, M.R., in Vilmont V. Bentley (1887), 18 Q. B. D. at pp. 326, 328. (u) Per Lord Esher, M.R., in Vilmont v. Bentley, supra, at p. 327. (v) See, for this principle of construction, the judgments in Bank of England v. Vagliano, [1891] App. Ca. pp. 130, 160. (x) Per Buller, J., in Horwood v. Smith (1788), 2 T. R. at p. 756; Scattergood v. Sylvester (1850), 15 Q. B. 506; Bentley v. Vilmont (1887), 12 Ap. Ca. 471. (y) Lofft, 88; Noy, 128; Cro. El. 661. (z) See Reg. v. Justices of Central Criminal Court (1886), 17 Q. B. D. 598. S. 24 (1). S. 24 (1). S. 24 (2). It is apprehended that the word "goods" would still include "proceeds," as under the Larceny Act. Revests. That is to say, in cases where the property has passed to the person in possession of the goods. When the property has not passed, the Act is not required. Thus, a person who has purchased out of market overt goods which the owner claims of him is liable in trover if he afterwards resell them, although before the conviction of the thief (a). The property revests on the conviction of the offender (b). Consequently, an innocent buyer in market overt, who had parted with the goods before the conviction, is not liable in trover to the original owner (c). But, if they were in his possession at the date of the conviction, and he was compelled to give them up, he could not counter-claim for their keep previous to conviction, as he was then keeping his own property (d). Sub-s. 1 applies to the case of a factor, and, on his conviction, a title acquired from him is divested (e). Notwithstanding any intermediate dealing.-As, e. g. (in addition to sale), a pledge to a pawnbroker. S. 30 of the Pawnbrokers Act of 1872, deals with the restitution of goods feloniously taken and subsequently pledged. ILLUSTRATIONS. 1. B. steals A.'s cow, and sells it to C. in market overt. B. is afterwards convicted of the larceny, and A. demands the cow of C., who refuses to deliver it. A. may recover against C. in trover, and no restitution order is necessary. Scattergood v. Sylvester (1850), 15 Q. B. 506. 2. B. steals A.'s sheep, and sells them in market overt to C. A. gives notice to C. of the theft, and C. re-sells the sheep. B. is then convicted of larceny. C. is not liable to A. in trover, as he did not have the sheep in his possession at the time of B.'s conviction, at which time only A.'s property revested. Horwood v. Smith (1788), 2 T. R. 750. Wrongful means not amounting to larceny.-This sub-section alters the law as laid down in Bentley v. Vilmont (ƒ), which decided that the 24 & 25 Vict. c. 96, s. 100, applies to cases of false pretences the same law as is applicable to the larceny of goods. In both cases the property was held to revest in the original owner on the conviction of the offender. This decision was come to with regret, and was (a) Peer v. Humphrey (1835), 2 A. & E. 495. See also Cundy v. Lindsay (1878), 3 Ap. Ca. 459. (b) Per Buller, J., in Horwood v. Smith (1788), 2 T. R. 750; per Lord Bramwell, in Bentley v. Vilmont (1887), 12 Ap. Ca. at p. 480. based on the wording of the (c) Horwood v. Smith, supra. (d) Walker v. Matthews (1881), 8 Q. B. D. 109. (e) R. v. Woollez (1860), 8 Cox, Cr. Cas. 337. (f) (1887), 12 Ap. Ca. 471. Act. In future, the cases will fall under two heads :-(1) Cases of what Lord Esher, M.R. (g), calls "bare false pretences," i.e., where the property does not pass on a de facto contract from the original owner, and in which, consequently, his common law rights are left unimpaired; (2) "Cases of false pretences which lead to a contract of sale" (g), in which, in fact, the offender has a voidable title, which he can transfer absolutely under s. 23, and also (it is apprehended), where there is delivery, under s. 25 (2). An instance of the latter case was Moyce v. Newington (h), which is now (though overruled in Bentley v. Vilmont) good law by virtue of the Act. Notwithstanding any enactment to the contrary. See the Larceny Act (24 & 25 Vict. c. 96), s. 100, and the Summary Jurisdiction Act (42 & 43 Vict. c. 49), s. 27. These sections are accordingly repealed so far as they allow the revesting of the property in goods obtained otherwise than by larceny; and the law now is as it was under the first statute, the 21 Hen. 8, c. 11. It is apprehended that by the use of the words "by reason only of the conviction" the Legislature intended to preserve the right of the Court to order restitution of the goods obtained, where restitution would be just; as, e.g., when the offender or his agent was still in possession (i), or no third person had acquired a good title from him; and, perhaps, even where a third person has obtained a good but voidable title. "The order of restitution is cumulative to the ordinary remedy by action" (k), the former being in the discretion of the Court (1). Provisions . . . do not apply to Scotland.-For the law of Scotland, see Bell's Prin. ss. 527, 1320; 1 Bell's Illustr. pp. 417, 418; Bell on Sale, p. 80. ILLUSTRATIONS. 1. B. buys sheep of A., and gives in payment a cheque on a bank where he has no account, and afterwards resells to Ĉ., a bonâ fide buyer without notice. A. afterwards retakes the sheep from C.'s farm. B. is subsequently convicted of obtaining the sheep from A. by false pretences. C. may recover in trover from A. for the conversion of the sheep, as the property vested in C. was not revested by B.'s conviction. Moyce v. Newington (1878), 4 Q. B. D. 32 (m). 2. B. obtains, by false pretences, from A. goods which he pawns to C., who deposits them with D., in the City of London, for sale. E. buys them of D. B. is afterwards convicted of false pretences. A. is [not] entitled to recover the goods from E., as E.'s property is not divested by B.'s conviction. Bentley v. Vilmont (1887), 12 Ap. Ča. 471. (g) Vilmont v. Bentley (1886), 18 Q. B. D. at p. 328. (h) (1878), 4 Q. B. D. 32. (i) Reg. v. Justices of Central Criminal Court (1886), 18 Q. B.D. 314. (k) Per Pattison, J., in Scattergood V. Sylvester (1850), 15 Q. B. 506. (1) Per Esher, M.R., in Vilmont v. 4 Bentley, supra, at p. 327. At the 5 T. R. 175, to same effect. This S. 24 (2). S. 24 (3). |