SALE OF STOLEN HORSES. 597 



use, was held to be much "too refined." The defendant merely held 

 the £70 to the use of the party who should be entitled at the time when 

 the option was to be determined. 



It was ruled by the Court of Common Pleas, in Lee .v. Bayes and 

 Eohinson, that the sale by puhlic auction at a liorse rejwsttory out of the 

 City of London is not a sale in market overt, according to the statutes 

 2 & 3 Ph. & M. c. 7, and 31 Eliz. c. 12 ; and also on the authority of 

 }Vlute V. Spettigue (which overrules Gimson v. Woodfall and Peer v. 

 Humphreys), that the obligation which the law imposes on a plaintiff to 

 prosecute the party who has stolen his goods, does not apply where the 

 action is against a third party innocent of the felony. The facts of the 

 case, which were very hitricate, were as follows : 



The plaintiff's horse had been stolen out of the Essex marshes, and 

 the defendant Bayes bought it on commission, by public auction, at 

 Ilea's Horse Repository, Nov. 27, 1855, through the agency of one 

 Proctor, for £8 5s. His customer did not like it, and it was sent back 

 again to Robinson's Repository in Little Britain, where it w^as claimed 

 by the plaintiff. Bayes told the plaintiff where he had bought the 

 horse, but he refused to give it up, and Robinson and his clerk refused 

 to do so without his authority. A police officer was procured, and Lee 

 gave Bayes in charge for stealing the horse. The inspector refused to 

 take the charge, but sent a constable with the parties to Rea's Reposi- 

 tory, where the auctioneer satisfied the plaintiff that the horse had been 

 bought there. Lee, Bayes, and the constable then went back to Robin- 

 son's, when Bayes, Robinson's son, and the foreman refused to give up 

 the horse, in spite of the offer of an indemnity to Robinson ; but on the 

 7th of December, Robinson's attorney offered by letter to give it up, on 

 an indemnity being given to himself and Bayes. .The action was 

 brought for a wrongful conversion and detainer. The defendants main- 

 tained that as the horse was sold at a public auction, the plaintiff could 

 not recover, but that at all events he was bound first to prosecute the 

 thief to conviction, and that there was no evidence of di joint conversion. 

 The jury found that Bayes had purchased the horse lomi fide, and 

 returned a verdict for the plaintiff, damages £30, to be reduced to £5 

 if the horse was returned. WiUes J. said : " Here the defendants had 

 notice that the horse belonged to Lee ; and although what passed on 

 the first occasion when the horse was demanded was merely a reference 

 to Bayes, as the party who had deposited it as owner, on the second 

 occasion there was an absolute and unqualified refusal to acknowledge 

 Lee's title and an assertion of the title of Bayes, which clearly was 

 evidence of a conversion. The letter of the 7th of December, though 

 written after the commencement of the action, may serve to throw light 



