2-207 (Original)

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Motion to enter a verdict for the defendant. This was an action of special assumpsit for falsely warranting the defendant's title to a horse sold and delivered by him to the plaintiff at the price of £30, with the common counts. Plea, non-assumpsit. At the trial, before Stephen, J, and assessors, on September 25, 1839, it appeared in evidence that the defendant sold the horse in question to the plaintiff in May, 1837, at the price of £30, and gave him a bought and sold note without any warranty or affirmation of title. The plaintiff lost the horse shortly after the sale, and in August following, being found in the possession of a Mr. Suttor, of Bathurst, it was claimed by a Mr. Edward Cox as his property, having been stolen from him two years before. Mr. Cox went before the Police Magistrate at Bathurst and swore to the horse, and the magistrate ordered it to be delivered up to him, he giving a bond to produce the horse again when called upon for the purposes of justice. Several attempts had been made by Mr. Cox to discover the thief by tracing the horse through the hands of several possessors, but without success. The defendant had become possessed of the horse by a sale at public auction at Bathurst; the animal had been seized and sold under the Licensing Act as being employed to carry spirits about the country for the purpose of being illegally retailed. There was no proof of any public market or fair being held at Bathurst. The defendant contended that the action was not maintainable without express warranty or affirmation of title, and that the sale by public auction, by order of the magistrate, must be regarded as a sale in market overt. The plaintiff relied on failure of consideration. A verdict having been entered for the plaintiff with leave reserved, etc, the court was moved to enter a verdict for the defendant, and on October 12 the judgment of the court was delivered by - Dowling, C.J.: We are of opinion that this action is maintainable, and that the verdict entered for the plaintiff must stand. Three propositions were sought to be established on the part of the defendant. First, that the sale by auction to the defendant under the orders of the magistrates at Bathurst amounted in law to a sale in market overt, so as absolutely to change the right of property in the absence of any proof of knowledge in the defendant that the horse was stolen, or any other indication of fraud. Secondly, that supposing this not to be a sale in market overt, yet Cox could not claim the horse without prosecuting the supposed thief to conviction. [284] And, thirdly, that at all events this action could not be maintained without an express warranty or affirmation of title in the horse or proof of a guilty knowledge that the defendant had no title in the animal. As to the first point I think it cannot be maintained that a sale by public auction at a place not authoritatively appointed by law for publicly buying and selling, is a market overt. It is not found as a fact in this case, that this sale took place in an open public market-place. It was simply a sale by auction, but with what notoriety or advertisement previously to the sale does not appear. But six persons seem to have been in attendance at the auction. It has been holden by this court that a sale in market overt has a legal technical meaning even in this colony. In McLucas and another V. Hunt, tried on the 7th April, 1834, the plaintiff bought cattle at a fair value openly and publicly in the day time in the yard of an inn at Parramatta, of a man named Young (many persons being present), and resold them to the defendant who paid the plaintiff partly in cash and partly by his promissory note. Before the promissory note became due it was discovered that the cattle were stolen by Young (who was afterwards brought to justice), and the plaintiff having brought his action against the defendant upon the note, it was contended that the sale in the inn yard was, under the circumstances, in this colony (where we have at present no public fairs or open cattle markets in country places), tantamount to a sale in market overt, but after solemn argument Chief Justice Forbes, Mr. Justice Burton and myself held that in this court we are bound to give a legal technical meaning to "a sale in market overt," and that as the right of property was not changed by such a sale as was proved, the plaintiff could not recover. If we were to hold that a sale by public auction, however notorious in a place appointed by the vendor himself, or by any other person amounted in law to a sale in market overt, it is scarcely necessary to point out the evil consequences which might result in this colony. Such a mode of sale might afford a ready mode of disposing of stolen property without the knowledge of the true owners. Such a sale has none of the well-known incidents of a sale in market overt; one of which is that it shall be in a public open place duly appointed for that purpose by public authority, to which all persons may have recourse. The sale here may have been by the orders of the magistrates, and the defendant may have been an innocent purchaser, yet we have no authority for treating such a sale as a sale in market overt. Whenever we shall have public markets established in the country places of this colony it is probable that the doctrine contended for may become applicable to similar transactions, but in the present case there is no basis for the argument which has been addressed to us.
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