any act done to it (a). By the custom of London every shop in which goods are exposed publicly to sale, is market overt for such things only as the owner professes to trade in. But if my goods are stolen from me, and sold out of market overt, my property is not altered, and I may take them wherever I find them (6). And if a person wrongfully takes the goods of another and converts them into money, the latter has a right to recover the proceeds in an action for money had and received (c). But Pawnbrokers cannot set up the exception of market overt in answer to an owner's claim against them. The Act, 1 Jac. 1, cap. 21, sec. 5, provides that no sale, exchange, or pawn of stolen goods, which takes place within the City of London and the liberties thereof, or within Westminster and Southwark, or two miles of the City of London, shall work any alteration in the property of the person from whom the same were stolen. An action of trover will lie against the Pawnbroker, even though the delinquent has been tried and acquitted (d), for the pawnor can only part with such title as he has, and if a person pledges with another property to which he has no title, and which he has no right to pledge, the real owner may interpose and get possession of the property (e). And the Pawnbrokers' (a) Per Pollock, C.B., in Neate v. Harding, 6 Ex., 349, 350, citing Taylor v. Plumer, 3 M. & S., 562, in which the same doctrine was laid down in an elaborate judgment by Ellenborough, C.J. (b) 2 Bl. Com., 449. (c) Per Parke, J., Neate v. Harding, 6 Ex., 349, 351. (d) Packer v. Gillies, 2 Camp., 336 n. (e) Cheesman v. Exall, 6 Ex., 341. Act (a) empowers any Justice to order the restoration to the true owner, of any goods unlawfully pawned. And if the Justice is satisfied that the owner has just grounds for suspecting such goods to be pawned, he may issue a warrant for searching the Pawnbroker's premises within the hours of business, and on admittance being refused, the officer may break open the door within the hours of business, and if, upon search, the goods are found, and the owner's right of property in them is made out to the satisfaction of the Justice, he shall forthwith order them to be restored to the owner or owners thereof. And no Pawnbroker or other person shall oppose or hinder such search. By the Act for regulating the Metropolitan Police Courts (b), it is provided that if any goods be stolen, unlawfully obtained, or being lawfully obtained, shall be unlawfully pawned, and complaint be made to any of the Metropolitan Police Magistrates, that such goods are in the possession of any broker, dealer in marine stores, or person who shall have advanced money upon such goods within the Metropolitan Police district, the magistrate may issue a summons or warrant to compel the appearance of the broker, &c., and the production of the goods. The magistrate, in such a case, on the ownership being made out to his satisfaction, may order the goods to be delivered up to the owner, either without payment, or on payment of such sum, and at such a time as he shall (a) 39 & 40 Geo. 3, cap. 99, sec. 13. think fit, and any broker, &c., refusing or neglecting to give up the goods, or disposing or making away with the same, after notice that such goods were stolen or unlawfully pawned, shall forfeit to the owner of the goods the full value thereof, to be determined by the magistrate. But this order is not to bar the broker or dealer's right to bring an action within six months, to recover the possession of such goods from the person into whose possession they may come by virtue of the magistrates' order. Sec. 28 gives the magistrate power to make similar orders, in cases of summary conviction for illegal pawning, and also in cases where the goods are produced without the issue of a search warrant. And sec. 29 extends this power to goods charged to have been stolen or fraudulently obtained, and which are in the possession of any constable by virtue of a warrant of a magistrate, or in prosecution of any charge of felony or meanour, in regard to the obtaining thereof, and the guilty party cannot be found or has been summarily convicted, or discharged, or acquitted, or when he is found guilty, but the property so in custody has not been included in any indictment on which he has been found guilty. If the rightful owner of such goods cannot be found, the magistrate may make such order as seems to him meet. There is the same saving of the rights of the pawnee to bring an action to recover possession, as is contained in sec. 27. Sec. 30 of the same Act goes beyond those which precede it, for it gives the magis trate power to apply the goods for the benefit of the Police Superannuation Fund, after the misde expiration of twelve months, during which no person has appeared to claim them. By the Criminal Justice Act (a), Justices in Petty Sessions may order the restitution of property stolen, taken, or obtained by false pretences, by any offender dealt with under the Act, in such cases as the Court before whom the prisoner would, but for that Act, have been tried, would have been authorized to order restitution. The powers given by this Act to Justices in Petty Sessions may be exercised by a Stipendiary Magistrate, sitting alone (b). And though, under the Juvenile Offenders' Act (c), there is no forfeiture of the goods of the party convicted, the Justices may order restitution of the property to the owner in respect of which any conviction under the Act has taken place, whenever any person shall be deemed guilty under the provisions of the Act; and if the property is not forthcoming, the Justices, whether they punish or dismiss the complaint, may inquire into and ascertain the value of the property in money, and if they think proper, may order payment of such sum of money to the owner, by the person convicted, either at one time or by instalments at such periods as the Court may deem reasonable, and the party ordered to pay will be liable to be sued for the same. The Metropolitan Police Act also casts upon any person to whom goods may be offered under suspicious circumstances, the duty of apprehending and detaining the party so (a) 18 & 19 Vict., cap. 126, secs. 1 & 8. offering. "Any person to whom any property shall be offered to be sold, pawned, or delivered, if he shall have reasonable cause to suspect that any such offence has been committed with respect to such property, or that the same or any part thereof has been stolen or otherwise unlawfully obtained, is authorized, and if in his power is required, to apprehend and detain the party, and as soon as may be, to deliver him into the custody of a constable, together with such property, to be dealt with according to law" (a). Mr. Oke considers that "the power given by 39 & 40 Geo. 3, cap. 99, sec. 8, to the Justices to issue a warrant to apprehend any person unlawfully pawning the goods of others is supplemental to Jervis's Act (b), which authorises either a summons or a warrant to be issued in the first instance on an information for an offence." He adds, also, "it is the practice in London verbally to order the goods pawned, when produced at the hearing of this charge, to be delivered by the Pawnbroker to the owner, when the person pawning is convicted, and the sum ordered for their value, if paid, is handed to the Pawnbroker as the party injured" (c). The charge under this section must be of "knowingly and designedly" pawning, to give the magistrate jurisdiction. It is not sufficient that the complainant's information should say that he believed or suspected that the goods had been illegally pawned (d). (a) 2 & 3 Vict., cap. 47, sec. 66, (b) 11 & 12 Vict., cap. 43. (c) Magisterial Synopsis, 6th edit., 437. |