Newkirk v. Dalton

Scates, 0. J. It is difficult to discover upon what ground a defence can be placed by the purchaser of stolen property, under the 64th section of the criminal code, (Rev. Stat. 1845, p. 161,) which provides that “ all property obtained by larceny, robbery or burglary, shall be restored to the owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of the right to such property. Such owner may maintain his action, not only against the felon, but against any person in whose possession he may find the same.” The objection urged is, that before defendant can sue, he must prosecute and convict the thief, or do all in his power for his discovery, apprehension and conviction. This has been so held in some cases in England, and may have some application to cases where the stolen property had been sold in market overt, as known to the laws of England. • But that kind of markets is unknown with us, and the general rule is otherwise in England. 1 Yeates R. 478; 5 Serg. and Rawle R. 130; 8 Cow. R. 241. Trover will lie against the purchaser of the property, without a prosecution or conviction of the thief. White v. Spettigue, 13 Mees. and Welsb. R. 606; (S. C. 1 Carr and Kirwan, 673; 47 Eng. C. L. R. 674.) Peer v. Humphrey, 4 Nevill and Mann. 430, (S. C. 2 Adol. and Ellis R. 495,) was overruled in the above case of White v. Spettigue; and the doctrine will only apply, as I have said, to sales in markets overt. 2 Black. Com. 449. This was by Statute 21 Hen. VIII, C. 11, and which was also adopted in Virginia. See 2 Kent Com. 324, and note a; Harwood v. Smith, 2 Tenn. R. 750. This would seem to be so in Kentucky. 1 Dana R. 195. But for the contrary doctrine, see 2 Kent Com. 324-5, and notes, with authorities referred to. Marsh v. Keating, 1 Bingh. N. C. 198; Stone et al. v. Marsh et al., 6 Barn, and Cress. R. 55; Danee v. Baldwin, 8 Mass. R. 518; Hoffman et al. v. Carow, 22 Wend. R. 285; Pettingill v. Rideout, 6 N. Hamp. R. 454. And this doctrine would seem to be applicable to some cases of gross frauds, as was held in Salters et al. v. Everett, 20 Wend. R. 267; Tamplin & Co. v. Addy, Sheriff, in C. P., 1826, in note to Mowry et al. v. Walsh, 8 Cow. R. 239. The two cases deny the right of a bona fide creditor of the fraudulent purchaser to levy on and retain the goods against the vendor. So may the bailor recover of the purchaser of his bailee. Roland v. Grundy, 5 Ohio R. 202; Doty v. Hawkins, 6 N. Hamp. R. 247; Hyde v. Noble et al., 13 N. Hamp. R. 494. In Foster v. Tucker et al., 3 Maine R. 458, the supposed thief was sued in assumpsit, and the statute of limitations was pleaded. A conviction of the thief was held to be necessary to sustain trover, and that assumpsit would not lie. The same was held in Boody v. Keating, 4 Maine R. 164, in trover, though there the defendant had been convicted. But we do not conceive there can be any doubt about the general rule establishing the right to sue without prosecution or conviction, where the goods were sold out of a market overt, which we have not here, as known to the common law; and if there were such markets, the statute would repeal the common law in this respect. Judgment affirmed.