law holds in general that no one can sell what he does not possess himself; and it does not allow that the true owner has lost the property in the chattel or goods, by having accidentally mislaid them, or having them stolen from him. If, however, the thief or finder manages to sell the goods in market overt, then the buyer is by common law entitled to retain them against the true owner. However, by Statute 24 & 25 Vict. (1861), c. 96, § 100, it is now enacted that if the loser prosecutes the thief to conviction, then the court may grant a writ of summary restitution to the true owner of the property, in whose ever hands it may be, even though he may have bought it honestly, and given full value for it. In the City of London every day except Sunday is, by ancient custom, market day; and every shop is market overt for the goods which are usually sold there, but for no others. It was held by all the judges" that if plate be stolen and sold openly in a scrivener's shop on the market day (as every day is a market day in London except Sunday), that this sale should not change the property; but the party should have restitution; for a scrivener's shop is not a market overt for plate, for none would search there for such a thing; et sic de similibus, &c. But if the sale had been openly in a goldsmith's shop in London, so that any one who stood or passed by the shop might see it, there it would change the property. But if the sale be in the shop of a goldsmith, either behind a hanging, or behind a cupboard upon which his plate stands, so that one stood or passed by the shop could not see it, it would not change the property; or if the sale be not in the shop, but in the warehouse or other place of the house, it would not change the property, for that is not in market overt, and none would search there for his goods. So every shop in London is market overt for such things only which by the trade of the owner are put there to sale." But in country towns only those days are market days which are appointed by law or ancient custom; and those places only are market overt for any goods, merchandise, or cattle, which are expressly appointed for the sale of such articles. And, consequently, all sales of any articles made in any other than such places are void against the true owner, if the articles be not the 1 The case of Market Overt, 5 Co: 83 b., Hil., 38 Eliz. property of the seller. We might, if necessary, illustrate these doctrines by several recent cases, but that would occupy too much space in such a work as this. 4. Such is the law with regard to all kinds of goods, merchandise, and cattle. But with regard to MONEY the case was always different. If a person stole or found money belonging to any one else, the true owner could compel him to give it up, if he could prove the fact, and identify the money. But if the finder or thief paid away the money in the ordinary course of business; as if, for instance, a shopkeeper sold goods to the thief, and took the money in the ordinary course of his business, without knowing that it was stolen, then he could retain the money against the true owner even though he could identify it. That is to say, the property in the money passed along with the honest possession of it in every sale or exchange. And from this peculiarity money was said to be CURRENT, i. e., that the property in it passed by delivery. And this was necessary by the very nature of commerce, because no transactions could take place if the seller was bound in every sale to inquire into the right of the buyer to the money. And from this exceptional property of money, the expression arose of the CURRENCY of money, but no one for a very long time ever thought of such a barbarism as to call the money itself CURRENCY. But when in the course of time Bills of Exchange, and other securities for money, came into use, it was adopted as a custom or usage by the Law Merchant, that the same rule should apply to them as applied to money; that is to say, that the property in them should pass with the honest possession. It would have been a great impediment to all commerce if the vendor of goods had been obliged to inquire into the title of any one who offered a Bill of Exchange or Bank Note in payment of them. Consequently this principle of CURRENCY was applied to all negotiable securities for money. It is so important that the doctrines relating to the Property of Negotiable Instruments should be generally known, that we subjoin them, as laid down in the Digest of the Law of Bills of Exchange, &c., which we prepared for the Royal Commissioners for the Digest of the Law: "37. 1. If any negotiable bill, note, obligation, or security for money be lost or stolen the finder or thief cannot retain it against the true owner, or recover against the parties to it. Anonymous, 1 Ld. Raym., 738. Greenstreet v. Carr, 1 Camp., 551. Burn v. Morris, 3 L. J. N. S. Ex., 193. "2. But if such finder or thief, or if a person holding such security as AGENT (1) for the owner of it, pass it away or pledge (2) it for value, and the transferee is ignorant of the fraud, such innocent holder, or pawnee for value, may retain it against the true owner, and has a right of action against all the parties to it. Bank Notes. Anon., 1 Ld. Raym., 738. Miller v. Race, 1 Burr., 452. Lowndes v. Anderson, 13 East, 130. Beckwith v. Corrall, 2 C. & P., 261; 11 Moo., 335. Snow v. Sadler, 11 Moo., 506. Raphael v. Bank of England, 17 C. B., 161. Carlon v. Ireland, 5 El. Cheques. Grant v. Vaughan, 3 Burr., 1516. & Bl., 765. Rothschild v. Corney, 9 B & C., 388. Watson v. Russell, 3 B. & S., 34; 5 B. & S., 968. Bills of Exchange. Peacock v. Rhodes, 2 Doug., 633. Lawson v. Weston, 4 Esp., 56. Crook v. Jadis, 6 C & P., 191; 3 Nev. & Man., 257. Backhouse v. Harrison, 3 Nev. & Man., 188. 4 A. & E., 870. M. & W., 355. Navy Bills. Uther v. Rich., 10 A. & E., 784. Exchequer Bills. Wookey v. Pole, 4 B. & Ald., 1. Goodman v. Harvey, May v. Chapman, 16 F. & G., 4. Foreign Transferable Bonds. Gorgier v. Mieville, 3 B. & C., 45. (1.) Bank of Bengal v. Macleod; Id. v. Fagan, 7 Moo., P. C., 35, 61. . (2.) Collins v. Martin, 2 Esp., 520; 1 B. & P., 648. Jones v. Peppercorne, 1 John., 430. "3. But if the transferee knows at the time of taking the instrument that it has been lost or stolen (1), or if he knows that the person he takes it from has no authority to sell or pledge it (2), or if it be taken for an illegal consideration (3), he cannot retain it, or recover on it, even though he has given full value for it. (1.) Burn v. Morris, 3 L. J. N. S. Ex., 193. (2.) Maclish v. Ekins, Say., 73. Treuttel v. Barandon, 1 Moo., 543. Foster v. Pearson, and Stephens v. Foster, 1 C. M. & R., 849. Fancourt v. Bull, 1 Bing., N. C., 681. Willis v. Bank of England, 4 A. & E., 21. Whistler v. Forster, 14 C. B., N. S., 248. (3.) Wynne v. Callander, 1 Russ., 293. "38. But if the instrument be not negotiable, or if the transferor held it as TRUSTEE, or if he acquired or transmitted it by means of a forgery, the innocent holder, or pawnee for value, has only the equities of the transferor, and cannot retain it against the true owner, or recover on it. Manningford v. Toleman, 1 Coll. C. C., 235. Moore v. Jervis, 2 Coll. Partridge v. Bank of England, 76. Hall v. Fuller, 5 B. & C., Esdaile v. Lanauze, 1 Y. & C., C. C., 60. Lang v. Smyth, 7 Bing., 284. And so important is this principle of the CURRENCY of all negotiable instruments, that in the Statute respecting the restitution of stolen property, it is expressly provided that it shall not apply to negotiable instruments. It says" Provided that if it shall appear before any award or order made that any valuable security shall have been bonâ fide paid, or discharged by some person or body corporate liable to the payment thereof, or being a negotiable instrument shall have been bonâ fide taken or received by transfer or delivery by some person or body corporate, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanour been stolen or taken, obtained, extorted, embezzled, converted, or disposed of, in such case the Court shall not award or order the restitution of such Security," Thus we see that the law has taken the utmost precaution to preserve as absolutely inviolable the NEGOTIABILITY or CURRENCY of all negotiable instruments under all circumstances whatever. And if such a barbarism be generally accepted as to call money CURRENCY, for precisely the same reason all Negotiable Instruments must equally be called CURRENCY; for they are equally subject to the same rules of Law, from which they derive the name. 5. These doctrines, however, are so important as being at the very basis of the whole of our monetary system; and as they have given rise to so many controversies which are yet raging; and as they have been so misunderstood and misrepresented by literary men who never took the smallest pains to inquire into the law of the subject, that we think it will be more satisfactory to our readers not to rest satisfied with the preceding exposition, but to lay before them the actual decisions of the Courts of Law and Equity establishing them. 24 & 25 Vict. (1861), ch. 96, § 100. We shall therefore demonstrate to our readers as matters of pure Commercial Law-(1.) That all Negotiable Instruments are subject to the same Law regarding their transfer and property, as MONEY. (2.) That it is from this property exclusively that the name CURRENCY has been derived; and (3) that all Negotiable Instruments are CURRENCY as well as Money. 1. To shew that all Negotiable Instruments have the attribute of CURRENCY, i. e., are subject to the same Law regarding their transfer as Money. BANK NOTES.-(Anonymous, 1 Lord Raymond, 738.) A Bank bill was payable to A. or bearer. A. gave it to B. B. lost it, C. found it, and assigned it over to D. for valuable consideration. D. went to the bank and got a new bill in his own name. A. brought trover against D. for the former bill. And ruled by HOLT, C. J., at Guildhall, 1698, that an action did not lie against D. because he had it for a valuable consideration. The leading case, however, on the subject is that of Miller v. Race (1 Burr., 452). Finney, the true owner of a Bank Note, sent it by post to a friend in the country. The mail was robbed, and on the next day the note came into the possession of the Plaintiff, Miller, for a full and valuable consideration, and in the usual course and way of his business, and without any notice of the robbery. Finney stopped the note at the Bank. A short time after Miller applied to the Bank for payment of the note, and delivered it to Race, the defendant, a clerk in the Bank. Race refused either to pay, or return, the note to Miller; and Miller brought this action to recover possession of the note. Lord Mansfield ruled, with the unanimous concurrence of the Court, that Miller had the right to have the note given back to him as his property, because Bank Notes have the Credit and the CURRRENCY of money, to all intents and purposes. An action would lie against the finder; that no one disputed: but not after the note had been paid away in CURRENCY. Lord Mansfield said that in the preceding case just cited, the action did not lie against the defendant because he took it in the course of CURRENCY; and therefore it could not be followed in his hands. It never shall be followed into the hands of a person who bonâ fide took it in the course of CURRENCY. A bank note is constantly and universally, both at home and abroad, treated as money, as cash; and it is |