1911 Encyclopædia Britannica/Stolen Goods

STOLEN GOODS. In English law, various points of importance arise in connexion with chattels which have been the subject of larceny and have not been returned to the possession of their owner. The owner of the goods stolen has an action against the thief for the goods or their value. How far he is entitled to pursue his civil right to the exclusion of criminal prosecution does not seem very clear upon the authorities. In Midland Insurance Co. v. Smith (1881, L.R. 6 Q.B.D., 568), Mr Justice Watkin Williams said: " It has been said that the true principle of the common law is that there is neither a merger of the civil right, nor is it a strict condition precedent to such right that there shall have been a prosecution of the felon, but that there is a duty imposed upon the injured person not to resort to the prosecution of his private suit to the neglect and exclusion of the vindication of the public law; in my opinion this view is the correct one." Dealing with stolen goods by persons other than the thief may affect the rights of such persons either criminally or civilly. Two varieties of crime arise from such dealings. (1) Receiving stolen goods knowing them to have been stolen, a misdemeanour at common law, is by the Larceny Act a felony punishable by penal servitude for fourteen years where the theft amounts to felony, a misdemeanour punishable by penal servitude for seven years where the theft is a misdemeanour, as in obtaining goods by false pretences. Recent possession of stolen property may, according to circumstances, support the presumption that the prisoner is a thief or that he is a receiver. The Prevention of Crime Act, 1871, made important changes in the law of evidence in charges of receiving. It allows, under proper safeguards, evidence to be given in the course of the trial of the finding of other stolen property in the possession of the accused, and of a previous conviction for any offence involv- ing fraud and dishonesty. (2) Compounding theft, or theftbole (redemptio furti), that is, taking back stolen goods or receiving compensation on condition of not prosecuting, is a misdemeanour at common law. It need not necessarily be committed by the owner of the goods. Under the Larceny Act it is a felony punish- able by seven years' penal servitude to take money or reward corruptly for helping to recover stolen goods without using all due diligence to bring the offender to trial. By the same act, to advertise or print or publish any advertisement offering a reward for the return of stolen goods, and using any words "purporting that no questions will be asked, &c, renders the offender liable to a penalty of £50. This penalty must, by the Larceny (Adver- tisements) Act 1870, be sued for within six months, and the assent of the attorney-general is necessary. Various acts provide for the liabilities of pawnbrokers, publicans, marine-store dealers, and others into whose possession stolen goods come. Search for stolen goods can only be undertaken by a police officer under the protection of a search warrant. The law as to stolen goods, as far as it affects the civil rights and liabilities of the owner and third parties, is shortly as follows. As a general rule a purchaser takes goods subject to any infirmities of title. The property in money, bank-notes, and negotiable instruments passes by delivery, and a person taking any of these bona fide and for value is entitled to retain it as against a former owner from whom it may have been stolen. In the case of other goods, a bona fide purchaser of stolen goods in market overt (see Sale of Goods) obtains a good title (except as against the Crown), provided that the thief has not been convicted. After conviction of the thief the property revests in the owner, and the court before which the thief was convicted may order restitution, except in the cases specially mentioned in the Larceny Act, i.e. the bona fide discharge or transfer of a security for value without notice and the fraudulent dealing by a trustee, banker, &c, with goods and documents of title to goods entrusted to him. After conviction of the thief the goods must be recovered from the person in whose hands they are at the time of the conviction, for any sales and resales, if the first sale was in market overt, are good until conviction of the thief. The protection given by market overt is unknown in Scotland. If the goods were obtained by false pretences and not by larceny, the question then is whether the property in the goods has passed or not, and the answer to this question depends upon the nature of the false pretences employed. If the vendee obtains possession of goods with the intention by the vendor to transfer both the property and the possession, the property vests in the vendee until the vendor has done some act to dis- affirm the transaction. But if there was never any such inten- tion—if, for instance, the vendor delivers the goods to A.B. under the belief that he is CD.—the property does not vest in the transferee, and the owner may recover the goods even from a bona fide purchaser.

In the United States the law as to stolen goods is regulated by statute in the various states, but the broad principles are practically in accordance with English law. The doctrine of market overt is not, however, acknowledged by any state. The purchaser from a thief gets no title as against the owner. One who buys goods from a factor who procured them by larceny is not protected by the Factors Act in New York (Soltau v. Gerdau, 119 N.Y. 380). To the same effect (Gentry v. Singleton (1904), 128 Fed. R. 670) is a purchase of cattle from a thief. The U.S. Supreme Court held, in an action of detinue to recover five negro slaves, that the English rule as to sale in market overt did not apply in the United States {Ventress v. Smith, 10 Peters 175). In Pennsylvania there is no market overt and a purchaser of personal property cannot get a good title from one without title by paying for it (1907, Heisley v. Economy Tool Co. 33, Pa. Super. Ct. 218). So in Maine {Combs v. Gorden, 59 Me. in). In Massachusetts a sale of butter in the open market by one who had feloniously acquired possession of it did not transfer the property (Dame v. Baldwin, 8 Mass. 518). So held also in New York where horses stolen from there were sold in Canada, though a purchaser there is entitled to be reimbursed before delivering to the owner (Edgerly v. Bush, 81 N.Y. 199).

See also False Pretences; Larceny.