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Caledonia County, 1836; s. P. Lamoille County, 1841. Since the first of these cases was decided, the main question, involved in this case, has been considered doubtful in this state, and we now feel at liberty to decide it, as we think the law should be, that is, as it is settled at common law.

But the idea, that some analogy existed between a sheriff's sale and a sale in market overt is certainly not peculiar to the late Chief Justice Tyler. This opinion seems at one time to have prevailed in Westminster Hall, to some extent, at least; for in the case of Farrant v. Thompson, 5 B. & A. 826, which was decided in the King's Bench in 1822, nearly twenty years later than that of Heacock v. Walker, one of the points raised in the trial of the case before Chief Justice Abbott was, that the title of the purchaser, being acquired at sheriff's sale, was good against all the world, the same as that of a purchaser in market overt. This point was overruled, and a verdict passed for the plaintiff, but with leave to move to set it aside, and to enter a nonsuit, upon this same ground, with one other. This point was expressly argued by Sir James Scarlett, who was certainly one of the most eminent counsel, and one of the most discriminating men of modern times, in the King's Bench, and was decided by the court not to be well taken. Since that time I do not find, that the question

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It seems to be considered in Massachusetts, and in New York, and in many of the other states, that nothing analogous to markets overt in England, exists in this country. Dame v. Baldwin, 8 Mass. 518; Wheelwright v. De Peyster, 1 Johns. 480; 2 Kent, 324, and cases. there cited. Nothing of that kind, surely, exists in this state, unless it be a sheriff's sale. And if the practice of holding sales in market overt conclusive upon the title existed in any of the states, it would be readily known. I conclude, therefore, that Chancellor Kent is well founded in his opinion, when he affirms, that the law of markets overt does not exist in this country. Ib.

It seems probable to me, that the idea of the conclusiveness of a sheriff's sale upon the title is derived from the effect of sales under condemnations in the exchequer, for violations of the excise or revenue laws, and sales in prize cases, in the Admiralty courts, either provisionally, or after condemnation. But these cases bear but a slight analogy to sheriff's sales in this country, or in England. Those sales are strictly judicial, and are merely carrying into specific execution a decree of the court in rem, which, by universal consent, binds the whole world.

Something very similar to this exists, in practice, in those countries, which are governed by the civil law; which is the fact in one of the American states, and in the provinces of Canada, and in most, if not all, the continental states of Europe. The property, or what is claimed to be the property, of the debtor is seized and libelled for sale, and a general monition served, notifying all having adversary claims to

interpose them before the court, by a certain day limited. In this respect the proceedings are similar to proceedings in prize courts, and in all other courts proceeding in rem. If no claim is interposed, the property is condemned, by default, and sold; if such claims are made they are contested, and settled by the judgment of the court, and the rights of property in the thing are thus conclusively settled before the sale.

But with us nothing of this character exists in regard to sheriff's sales. Even the right to summon a jury to inquire into conflicting claims de bene esse, as it is called in England, and in the American states, where it exists, has never been resorted to in this state. And in England, where such a proceeding is common, Impey, 153; Dalton, 146; Farr et al. v. Newman et al., 4 T. R. 621, it does not avail the sheriff, even, except to excuse him from exemplary damages. Latkow v. Eamer, 2 H. Bl. 437; Glassop v. Poole, 3 M. & S. 175. It is plain, then, that a sheriff's sale is not a judicial sale. If it were, no action could be brought against the sheriff, for selling upon execution property not belonging to the debtor.

With us an execution is defined to be the putting one in possession of that, which he has already acquired by judgment of law. Co. Lit. 154 a. (Thomas' Ed. 405.) But the judgment is of a sum in gross "to be levied of the goods and chattels of the debtor," which the sheriff is to find at his peril. The sale upon the execution is only a transfer, by operation of law, of what the debtor might himself transfer. It is a principle of the law of property, as old as the Institutes of Justinian. Ut nemo plus juris in alium transferre potest, quam ipse habet.

The comparison of sheriff's sales to the sale of goods lost, or estrays, in pursuance of statutory provisions, which exist in many of the states, does not, in my opinion, at all hold good. Those sales undoubtedly transfer the title to the thing, as against all claims of antecedent property in any one, if the statutory provisions are strictly complied with; but that is in the nature of a forfeiture, and is strictly a proceeding in rem, wherein the finder of the lost goods is constituted the tribunal of condemnation.

There being, then, no ground, upon which we think we shall be justified in giving to a sheriff's sale the effect to convey to the purchaser any greater title, than that of the debtor, the judgment of the court below is affirmed.

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SECTION V.

SALE IN MARKET-OVERT.

THE CASE OF MARKET-OVERT.

NEWGATE SESSIONS. 1595.

[Reported 5 Co. 83 b.]

Ar the sessions of Newgate now last past, it was resolved by Popham, Chief Justice of England, Anderson, Chief Justice of the Common Pleas, Sir Thomas Egerton, Master of the Rolls, the Attorney-General, and the court, that if plate be stolen and sold openly in a scrivener's shop on the market-day (as every day is a market-day in London except Sunday) that this sale should not change the prop erty, but the party should have restitution; for a scrivener's shop is not a market-overt for plate; for none would search there for such a thing; & sic de similibus, &c. But if the sale had been openly in a goldsmith's shop in London, so that any one who stood or passed by the shop might see it, there it would change the property. But if the sale be in the shop of a goldsmith, either behind a hanging, or behind a cupboard upon which his plate stands, so that one that stood or passed by the shop could not see it, it would not change the property so if the sale be not in the shop, but in the warehouse, or other place of the house, it would not change the property, for that is not in market-overt, and none would search there for his goods. So every shop in London is a market-overt for such things only which, by the trade of the owner, are put there to sale; and when I was Recorder of London, I certified the custom of London accordingly. Note, reader, the reason of this case extends to all markets-overt in England.1

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BRENT v. CHAPMAN.

SUPREME COURT OF THE UNITED STATES. 1809.

[Reported 5 Cr. 358.]

ERROR to the circuit court for the District of Columbia, sitting at Alexandria, in an action of trespass brought by Chapman against

1 In the United States there are no markets-overt, Dame v. Baldwin, 8 Mass. 518, 521; Griffith v. Fowler, 18 Vt. 390.

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