It seemed to be conceded upon the argument, that if the, goods were taken feloniously, *no title passed from the vendors; and they might pursue and take their goods wherevdl found. Such is the law in England, unless the stolen goods are sold fairly in market overt. 2 Bl. Com. 449. And as we have, in this state, no such market, (1 John. 471,) sales here can have no other effect than mere private sales in England. It follows that, in this state, any sale of stolen goods does not divest the title of the owner.
*It is proper, therefore, to inquire whether the goods in question were feloniously taken.
Larceny is defined, by East, to be the wrongful, or fraudulent taking or carrying away by any person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker’s) own use, and make them his own property, without the consent of the owner. 2 East’s P. C. 553. It is, therefore, important, in cases of delivery of possession by the owner, to inquire whether he intended to part with the possession or with the property; for if the latter, by whatever fraudulent means he was induced to give the credit, it cannot be felony. 2 East’s P. C. 668.
It cannot be necessary to refer to the various cases of bailment, or of fraudulent practices to obtain possession of property. I will cite a few, to show that when the property is intended to be transferred, no larceny is committed however great may be the fraud. In Rex v. Harvey, (2 East’s P. C. 669,) the prisoner agreed to give £8 for a horse, which was delivered to him on his promise to pay immediately. He mounted the horse and rode off. This was held no larceny.
Rex v. John Parks, and Rex v. Catharine Coleman, (2 East’s P. C. 671, 672,) were also cases of fraudulent sale and delivery, which were held no larceny. Rex v. Atkinson, (id. 673,) was somewhat like this case. The prisoner sent *243a third person to the prosecutor, with a «forged letter purporting to be written by one Broad, requesting the loan of £3 for a few days. The money was sent and delivered to the prisoner. After conviction, all the judges held, that this was no felony, on the ground that the property was intended to pass by the delivery of the owner. Commonwealth v. Kingsbury, (5 Mass. Rep. 106,) was not a case of sale. See also 3 Chit. Cr. Law, 921.
The delivery of the goods in question to Stevens, was clearly intended as an absolute sale. It was not, therefore, a case of larceny.
The jury have found that the goods were fairly purchased by the defendant of Stevens, without any notice of the fraud; and in my opinion the testimony fully warrants their finding.
The question then arises, upon a case where the goods are obtained by fraud from the true owner, and fairly purchased of, and the price paid to the fraudulent vendee, without notice, by a stranger, which is to sustain the loss, the owner or the stranger ?
Hartop v. Hoare, (1 Wils. 8; 2 Str. 1187, S. C.,) was a case of bailment, not a sale; and the court expressly say, that the plaintiff’s delivery was a naked bailment of the goods to his own use, and there was no authority given after-wards, to dispose of them; so that Seymour’s (the bailee) breaking the seal, made him a trespasser as to Hartop. Wheelwright v. Depeyster, (1 John. 471,) was not a case of sale or delivery by the owner. The property in question was seized tortiously on the ocean ; and no act done to divest the title of the owner.
The case of M'Combie v. Davies, (6 East, 538,) is not in point. The principle of that case is, that a person receiving in pawn from a broker, the property of his principal, is liable in trover to the principal, after demand and refusal ; but it has no application to a case of sale by the principal to a fraudulent vendee. So the case of Kinder v. Shaw, (2 Mass. Rep. 398,) decides that a factor cannot pledge the goods of his principal. But that class of cases have no application.
*244*Parker v. Patrick. (5 T. R. 175,) seems tobe in point for ' N '* A the defendant. In that case, goods had - been fraudulently fr0m the defendant, and pawned, for a valuable consideration and without, notice to the plaintiff. After conviction of the offender, the defendant obtained possession of Ms goods, but by what means does not appear. It was contended that the plaintiff, the innocent pawnee, could not recover; as he derived title through a fraud, and was like a person deriving title from a felon. But Lord Kenyon, thought the cases distinguishable; and the plaintiff had a verdict. A motion to set aside this verdict was refused; the court saying that the statute of 21 H. 8, ch. 21, did not extend to the case of goods obtained by fraud, but only to a felonious taking of them. By that statute, the owner of stolen goods is entitled to restitution, on conviction of the felon. But as that statute did not apply to a fraudulent obtaining of goods, the owner was not entitled to restitution. The question, then, was purely at common law; and the innocent pawnee was allowed to recover against the owner, whose goods had been obtained from him by fraud. According to that decision, had the plaintiffs in this case succeeded in getting their goods in any other way than by voluntary delivery from the defendant, he would be entitled to recover against them. The same principle was adopted by this court in M'Carty v. Vickery, (12 John. 348,) where it was decided, that after a delivery of goods sold, the vendor cannot bring trespass, although the sale was procured by fraud. The court say the property was changed.
Hollingsworth v. Napier, (3 Caines, 182,) was like Parker v. Patrick. The defendant had sold the cotton to Kinworthy for cash, payable on delivery. The defendant, in fact, de-, Jivered it by giving an order on the store-keeper without receiving payment. Kinworthy sold it Iona fide to the plaintiff, though there were some suspicious circumstances. The plaintiff took possession, and the defendant afterwards took and sold it. The plaintiff recovered a verdict; and this court refused to set it aside. *Kinworth'y’s purchase was palpably fraudulent, and so considered by the court.
*245The plaintiff’s counsel relies on a case lately tried in the English common pleas: Tamplin v. Addy, sheriff of Warwickshire. In that case, goods were fraudulently purchased of the plaintiffs by one Staunton. After the delivery of the goods to Staunton, they were levied on by the defendant under an execution, and sold. Best, Oh. J„, does indeed lay down the broad proposition, that if the goods were obtained by fraud, the right remained in the original owner, no matter into whose hands they found their way. That proposition was advanced at nisi prius ; but is certainly at variance with settled principles of law.
It is, no doubt, true, if confined to the parties in the fraud. But it does not extend to .an innocent purchaser. Perhaps, too, it may be correct in the particular case. The judgment creditor had not advanced money upon these goods, and his loss placed him in no worse situation than he was in before the fraud. But surely, in point of equity, there is a great difference between the fraudulent purchaser and an innocent one. The case of Noble v. Adams, (7 Taunt. 59,) decides, that between the parties, a fraudulent purchase gives no title; but the case of Parker v. Patrick was admitted to be good law by the counsel for the party defrauded.
The case of Bristol v. Wilsmore, (1 B. & C. 514,) was not cited on the argument; but it is in point to show the true principle which supports the nisi prius decision of Oh. J. Best. The principle is this; that the fraudulent purchaser having no title, and the sheriff having no power to seize and sell anything but the title of such purchaser, the sheriff’s sale did not divest the title of the true owner, the defendant in the execution having no right or title to be sold. And see Van Cleef v. Fleet, (15 John. 147.)
On the whole, therefore, I am of opinion that the innocent purchaser for valuable consideration must be protected ; and the motion for a new trial must be denied.
Hew trial denied.