
    Levi Dame versus Luke Baldwin
    There are no markets overt in this country; and a sale in the public marketplace in Boston, by one who had feloniously acquired the possession of the article sold, was held not to transfer the property.
    This was a writ of replevin for forty firkins of butter, which had been attached by the defendant, a deputy sheriff of this county, as the property of Daniel Cook of Corinth in the state of Vermont, at the suit of Robert M. Barnard, of Charlestown, in the county of Middlesex.
    
    The cause was tried at the last November term in this county, before Parker, J., from whose report the, following facts appear.
    These firkins of butter were the property of the said Cook in November, 1810, and he being desirous to transport them to Mr. Barnard, with whom he had had dealings, caused them to be bsanded with his name, and agreed with one Harlow to carry them to Charles-town, giving him written directions to deliver them to Barnard at the office for the inspection of butter. Harlow proceeded ten miles on the road, and then engaged one Barron to take the butter on, and delivered it to him for that purpose, giving him the written directions he had received from Cook. This was done without the knowledge of Cook. Barron employed one Brown to carry the butter, giving him the written instructions aforesaid, which he repeatedly read to him, and also furnishing him with some money to bear his expenses; CooJc being ignorant also of Brown’s being employed. * Brown sold two firkins of the butter on the way, to pay his travelling expenses, as he said.
    When Brown arrived in Boston with his load, not having carried it to the inspection office, nor having given any notice to Barnard, he went to the square in Boston, which is the usual and established market-place, and where great quantities of butter and other articles of country produce are sold; and there went to the store of the plaintiff, and offered the butter for sale, assuming the name of CooJc, and claiming to sell the butter as his own. Dame agreed to take it according to the inspection, and it was carried to the inspection office in Boston, and Brown, under the name of CooJc, returned to the store of Dame with the certificate of inspection, and Dame there paid him in bank bills the price of the butter, being 231 dollars 27 cents, taking a bill of parcels therefor, which Brown signed with his mark, the name of D. CooJc being added to the mark by some person in the store.—
    The defence was put upon three points.
    1. That from the circumstances of the case it ought to be presumed that Dame knew Brown, or with ordinary caution might have known him ; and so ought not to avail himself of the purchase. This was left by the judge to the jury, to decide upon the evidence in the case.
    2. That there was no sufficient delivery to Dame to complete the sale, the butter having been in the inspection office, when attached by Baldwin, and not in the actual possession of Dame, and there having been no actual delivery of it to him. The judge ruled this point against the defendant, considering the delivery at the inspection office to be for the use of the plaintiff, after the bargain to sell was made; and especially after the production of the certificate of inspection, and payment of the price, that it was constructively in Dame’s possession.
    3. That there was no authority in Brown to sell, and so no transfer of the property; which therefore remained in CooJc, until the attachment made by the defendant. But * the judge instructed the jury that the trust given by CooJc to Harlow, and so down to Brown, to transport the butter to Charlestown, although violated by Brown, would not authorize CooJc to reclaim the property from a bona fide innocent purchaser for a valuable consideration ; the sale being of an article commonly found in the market for sale; the carriers of such articles generally having authority to sell; and the property being exposed in the usual manner for the sale of such an article.
    The jury returned a verdict for the plaintiff; and a new trial being moved for by the defendant, the action stood over to this term on the motion.
    
      Whitman,
    
    in support of the motion, contended that there was no legal transfer of the property from Brown to the plaintiff. There was no sale in open market; or at least no delivery under such sale. A constructive possession by the plaintiff, which is all that the case finds, is not sufficient in a case where fraud is found. The case finds in effect that the butter was stolen by Brown, 
       and of stolen goods there can be no legal sale, except in a market overt,  of which we have none in this commonwealth.
    
      Thatcher for the plaintiff.
    The question on the effect of a sale in open market is presented, in this case, under circumstances the most favorable to the plaintiff. The commodity was exposed to sale in the open and common market, and in the usual manner. The verdict, has negatived the idea of fraud or collusion, as between the buyer and seller; nor does there appear any want of reasonable caution on the part of the plaintiff. The sale was public, and the manner of the purchase by the inspector’s certificate was the usual and most satisfactory mode, in which sales of the commodity are usually affected; the price was a fair one; and the article such as is usually sold in the market.
    At common law all sales of articles vendible in fairs or markets overt, are not only good between the parties, but are binding on the rightful owner. 
    
    * The question then arises,—is the market in Boston a market overt ? — A market overt is a certain place established in any town, under the authority of the supreme power, for buying and selling; and the market in Boston is of this character.
    In 1633 the following ordinance was passed by the general court of Massachusetts Bay. “ It is ordered by the authority of this court, that there shall henceforth be a market kept at Boston, in the county of Suffolk, upon the fifth day o.f the week, from time to time.-’  And the market place in Boston is recognized in sun dry ancient laws of the colony and province. -
    
      Brown was the factor or agent of Cook, and if he was guilty of any fraud or deception, the loss ought to fall on his employer, and not on an innocent purchaser for an adequate consideration. 
    
    
      
       4 Mass. Rep. 580, Commonwealth vs. Brown.
      
    
    
      
       5 Rep. 84.—2 Bl. Comm. 449. — 2 Inst. 713.
    
    
      
       1 Wils. 9, Hartop vs. Hoare. — 1 Leon. 158, Gibb's case. — Owen, 27.
    
    
      
      
        Gen. Laws, &c. of the Mass. Colony, 49.
    
    
      
      
        Salk. 289, Hern vs. Nichols.
    
   By the Court.

It is beyond a question that the taking by Brown was felonious, and therefore a sale by him could not transfer the property. We have no markets overt in this commonwealth. The verdict must be set aside, and a new trial granted.  