
    
      DAVIS vs. HAMPTON.
    
    Appeal from the court of the second district.
    Purchasing a beeo°6!0⅛⅞⅛⅛ market overt, does not give a unless Aere be sessionfouovring ⅜ 0 5 3 ] C
   Martin, J.,

delivered the opinion of the court. The plaintiff claims a horse which . p . . . . _ was stolen irom him in the state of Mississippi, now io the deiendant s possession, or the value thereof. The defendant pleaded the general issue, and that, admitting the fact as stated by the plaintiff, still, as the defendant is the bona fide owner and possessor of the horse, having purchased him openly and pub* V' 'v ;• aerse jobber,m the public high-_ , . . w&\ cadant is at all events entitled to recetvi- ase price paid for the horse.

The plaintiff had judgment for the horse, but was decreed to reimburse the price. He appealed.

His counsel urges, the judge a quo erred in decreeing the payment of the price. He urges that the old Civil Code, 488, art. 75 and 76, gives title to the possessor of a chaltle, after a possession of three years, unless it has been stolen; in which case the former owner can only recover it on paying the price paid, If it has been bought in a public market or from a person dealing in similar commodities. He contends it is only after a possession of three years that the purchaser may demand the price; and that the isolated fact of the defendant’s vendor having sold the horse now-claimed, with others at the same time, does not constitute him a vendor of horses. It is insisted that a contrary construction would repeal the article of the code, by making it a dead letter; as the plaintiff would then be. in every case, compelled to refund the purchase money, and would result in the singular anomaly that the recovery of stolen property would be rendered harder than that oí property lost by carelessness or accident. The circumstance of the two articles cited being placed under the title of prescription, is presented as one that supports the conclusion ; and it is said, the two articles being connected by the conjunction but, ought not to be divided.

The appellee’s counsel consider the seventy-sixth article as positive, and unconnected with the preceding.

We are of opinion the district judge erred. The seventy-fifth article provides, “ that if a a man has had a public and notorious possession of a moveable thing during three years, in the presence of the person who claims the property of the thing; said person, being a resident of the territory, is presumed to have known the circumstance of the possession, and the property becomes vested in the possessor, unless the thing has been stolen.”

Article seventy-six: “ but, however, if the thing stolen h 1-^ been purchased by the possessor, at a public market, at a fair, or auction, or from a person dealing in similar commodities, the former possessor can only obtain possession of the tiling bj paying the possessor the purchase money/’

.Nicholas for the plaintiff

The last article appears to us most intimately connecter] with the preceding, of which it is a modification. It begins by the words.: but, however; the definite article precedes the substantive thing. The thing; what thing? Evidently that just spoken of; that of which there has been a possession of three years.

According to the construction contended for by the appellee’s counsel, the sale of stolen property would be vastly facilitated; as the former owner would be without a remedy as soon as the thief effected a sale. Thus a horse thief, if he was for a while successful, would he a dealer in horses, and would forever preclude the person the horse was stolen from, if he effected a sale of it.

It is therefore ordered, adjudged, and decreed that the judgment be annulled, avoided, and reversed; arid that there be judgment, that the plaintiff recover the horse ; and in default thereof, the sum of $115, with costs in both courts.  