58 



FAIRS AND MARKETS OVERT, ETC. 



Proof of com- 

 pliance with 

 statute. 



Rule that 

 owner must 

 first endeavour 

 to bring the 

 thief to justice. 



To be taken 

 with modifica- 

 tions. 



given of a compliance with the statutory regulations, a bond 

 fide purchaser of a horse from a person who had bought it 

 (as the second purchaser knew) at a fair, without any 

 evidence that he knew that it was obtained dishonestly, 

 although it had been purchased on credit, and not paid for, 

 was held entitled to maintain trover against the original 

 owner for retaking it. 



The onus of showing that the formalities required by the 

 statute have been observed lies on the buyer. In Moran y. 

 Pitt (z) the defendant's mare, which he had turned out in 

 a public park, was found out of the park and was sold at 

 public auction by the " pinner " ; and after an inter- 

 mediate sale she was sold in market overt by the plaintiff 

 and subsequently taken possession of by the defendant. 

 No proof was given that the formalities required ,by the 

 statute had been complied with ; and the Court of Queen's 

 Bench, in the absence of such proof, declined to infer that 

 such formalities had been observed, and held that the 

 plaintiff could not maintain an action for the mare against 

 the defendant, the true owner. 



It has been held, that where a party has good reason to 

 believe that his horse has been stolen, he cannot maintain 

 trover against the person who bought it of the supposed 

 thief, unless he has done everything in his power to bring 

 the thief to justice (a). But where the owner of the stolen 

 property had prosecuted the felon to conviction, and before 

 that time had given notice of the felony to the defendant, 

 who had purchased bond fide, but not in market overt, 

 and the defendant after such notice had sold the property 

 in market overt, it was held that the owner might 

 recover from the defendant the value of his property in 

 trover (b). 



Though the decisions themselves in the cases of Gimson 

 V. Wood/all and Feer v. Humplirey have not been expressly 

 overruled, yet the general rule upon which they rest can 

 now only be taken with some modifications. It is a true 

 principle, that where a criminal and consequently an in- 

 jurious act towards the public has been committed, which 

 is also a civil injury to a party, that party shall not be 

 permitted to seek redress for the civil injury to the pre- 

 judice of public justice, and to waive the felony (c). But 



(z) 42L. J., Q. B. 47; 28 L. T., 

 N. S. 554 ; 21 W. R. 554. 



[a) Gimson v. JToodfall, 2 C. & P. 

 41. 



(i) Feer v. Sumphrei/, 2 A. & E 

 495. 



(c) Although this is the rule, it 

 becomes a dlfierent (Question when 



