case hartop versus hoar all easter term Geo b r the follow case seem to be a  material one in regard to property and may very probable be often cite in a  court of equity as well as in court of law and as I happen to have a full note  oh fit than any which have yet appear in print flatter myself the utility of  it will be a excuse for its appear here stram will r vin Abr vol p see fortesc  Rep sir John hartop in lodge jewel for safe custody in the hand of Seamer a  jeweller enclose in a paper the that be seal and put in a bag which be also  seal with the plaintiff seal and deposit at seamers house and the same day his  clerk give a receipt for they in these word which bag so seal I promise to  take care of for sir John hartop for my master James Seamer sign Michael hull  and in the receipt all the jewel be specify in February Seamer break both the  seal take out the jewel and carry they to Mr hoar the banker shop borrow pound  of the defendant and deposit the jewel as his own proper good and as a  security for the pound and give his promissory note for the same sum on Mr  hoar refuse to deliver the jewel to sir John hartop he bring a action of  trover and conversion against he and the jury have a doubt whether the  defendant be guilty of a conversion or not they refer it to the opinion of the  court of king bench by find a special verdict who this day give judgement for  the plaintiff unanimous vide Marsden v Panshall vern Demainbray v Metcalfe  vern hoar v Parker bro Charles Rep durn east Warner v Jenkins vin pl Bluck v  Nicholls ibidem pl Fotheringill v frost ibidem pl judgement in this case be  give for the plaintiff by lee Ch just who deliver the opinion of the court to  this effect this be a action of trover and conversion wherein the plaintiff  declare that he be possess of a pair of single stone brilliant diamond earring  c as of his own proper good and that he lose they and they come to the hand of  the defendant who convert they to their own use to this the defendant have  plead not guilty and the cause be try at guildhall and the jury find a special  verdict to this effect that the plaintiff be owner of the jewel mention in the  declaration on the that of January lodge they with other jewel for safe  custody only in the hand of James Seamer jeweller and banker enclose in a  paper which paper be atkins er p seal and put in a bag which be also seal with  the plaintiff seal and deposit they at seamers house in fleet street London  and take a receipt for they in the word and figure follow Jan receive of sir  John hartop Bart the follow jewel videlicet a pair of diamond earring c atkins  mention and describe the jewel for which the present action be bring all which  be seal up in a bag sealed with sir John Hartops seal which bag so seal I  promise to take care of for he for my master James Seamer sign Michael hull on  the d of February Seamer break both the seal and take out the jewel and carry  they to the defendant shop which be a public open shop in fleet street in the  city of London where the defendant carry on the business of banker and also  trade in jewel and frequent lend money on the securit of jewel and then and  there the say James Seamer borrow the sum of pound of the defendant and  deposit the jewel in the declaration mention as his own proper good and as a c  security for the say sum of pound then pay he by the defendant in their say  public and open shop and the say Seamer then give the defendant his promissory  note for the same sum so borrow and they further find that the say James  Seamer bad no authority from the plaintiff to sell pawn or dispose of the say  jewel and that the defendant not have be pay this sum of pound so lend by they  they have be request and refuse to deliver the aforesaid jewel to the  plaintiff and have keep they to their own use that the say Seamer continue in  possession of the say jewel until be pledge they to the defendant that in  January the say Seamer become a bankrupt and that a commission of bankruptcy  be take out against he but that be not material because the bankruptcy be  after the deposit the jewel then the jury find the value of the jewel to be  pound and upon the whole matter conclude with a doubt whether the defendant be  guilty of a conversion or not which they refer to the court the general  question be whether by any part here find sir John hartop the plaintiff and  owner of these good be bar from hail the good deliver to he on the demand that  be find in this special verdict to have be make or in the present action be  entitle to a satisfaction in damage for they on this question it will be  proper to consider first on the transaction find by the verdict in what  relation Seamer stand to sir John hartop the plaintiff second to consider the  act of Seamer and how far sir John hartop be affect by they the matter to be  determine be whether any thing do by Seamer have divest the property of sir  John hartop and have give such a right to the defendant to detain these jewel  as atkins shall make their detainer and their keep they to their own use to be  no conversion as to the first point I think it clear that sir John Hartops  delivery of the jewel to Seamer be a bare naked bailment of they for the use  of the bailor it be express find that they be lodge for safe custody only seal  up in a paper put into a bag which be also seal and that Seamer have no  authority from the plaintiff to sell ordispose of they this be therefore what  Lord chief justice holt in his enumeration of the several sort of interest  that a man may have in good in the case of cog versus Bernard salk call a  deposit of good in   southcote case a difference be take between bail and  pledge of good for a pawnee have a special property and S not consider as one  who have the custody only as appear to be the case d Seamer to who these jewel  be deliver to keep for the use of the bailor only as Seamer have these good by  the delivery of sir John hartop in this particular manner seamers breathe the  seal and take the jewel out of the bag and dispose of they make he a  trespasser to sir John hartop accord to the opinion of Anderson in more in all  case where a person to who good be deliver have neither a general nor a  special property if he convert they to his own use trespass will lie Anderson  there say that it be otherwise of a bailee but he must mean such a bailee as  have a special property and that Seamer have not and with this opinion of  Anderson the opinion of Lord chief justice Trevor agree in salk that though  trover will not atkins er p lie against a carrier for negligence yet if he  break open a box and take the good trespass will lie against he the next thing  to be consider be how far sir John hartop the true owner of these jewel be  affect by any thing that at be find to be do by Seamer who be only entrust  with the custody of they under very special circumstance in respect to their  be seal up in a paper and bag in the manner that have be mention and whether  sir John property be divest thereby Seamer have no kind of property either  general or special he come to the possession of the jewel by right original  but when he break the seal and take the jewel out of the bag atkins and by  that t mean enable himself to deliver they open to the defendant he be  possessor mal trust and go to the defendant as such but it be object that  Seamer be the possessor of the jewel and that be sufficient for the defendant  who be not privy to seamers wrong and I dare say they be not and that the  defendant deal with Seamer in the way of their trade and honest advance their  money on the security of these jewel of which Seamer appear to be the visible  owner and to be sure as it be hard on the plaintiff to have his jewel dispose  of dishonest so it be bare on the defendant to lose their money and it be urge  for they as the plaintiff trust Seamer and the defendant be stranger to he it  be more reasonable the loss shall fall on the plaintiff than on the defendant  and on this head be cite salk Henry ersus Nicholls before Lord chief justice  holt at nisi prius that be a action on the case for sell the plaintiff one  kind of silk pretend it to be of a different kind and on trial upon not guilty  it appear that there be no actual deceit in the defendant who be the merchant  but in his factor who be beyond sea and the doubt be if this deceit can charge  the merchant and holt be of opinion that the merchant be answerable for the  deceit of his factor though not criminalite yet in civil sphere and then come  that part of the case for which it be cite for see somebody must he a loser by  this deceit it be more reasonable that he who employ and put a trust and  confidence in the deceiver shall be a loser than a stranger and upon this  opinion the plaintiff have a verdict and there be no doubt but the verdict be  right in that case for the defendant employ his factor in the act of sell in  which the deceit be commit and by employ he as a factor he create a credit in  he but that be not the present case for the plaintiff here give no power to  Seamer to do the act in which the deceit be but on the contrary have use a  prudent method to prevent it the present case therefore be like the case in  Inst where a leaves a chest lock with b and take away the key there a do not  intrust b with the good as here do not seem to be any fault either in the  plaintiff or defendant let we now see what the commonlaw pronounce on these  transaction exclusive of the custom of London the case in which sale in market  overt have be plead and disallow be extreme strong to prove that this  disposition by Seamer do not affect the property of the plaintiff atkins in  more in a action of trover for jewel one plead the custom of Bristol that  every shop there be a market overt every day except Sunday and that the jewel  be sell to he in his shop in Bristol he be a goldsmith and on demurrer the  plea be hold to be ill because he do not aver that it be his shop in which he  use to exercise the trade of a goldsmith which he ought to have do for if the  jewel be sell in another shop it will not toll the property of the owner in  cro James where to a action of trover the defendant plead the custom of London  c and that he be a mercer buy their ware in his shop wherein he use to buy  such ware and on demurrer to the plea it be hold to be ill because the ware be  not agreeable to his trade and there it be say thatthe custom be too general  that every freeman may buy all manner of ware in every shop c for then a  scrivener may buy plate in his shop and the like c which be not reasonable  these case show that though the seller be a stranger to the party and though  be buy for a valuable consideration yet such sale do not bind the true owner  nor justify the conversion unless he bring himself within the custom of market  overt in which case the sale bind by reason of the default in the owner and be  compare atkins er p to the case of a fine and nonclaim h fol and in Bacon  treatise concern the use of the low fol edit property of good by theft or take  in jest where the sale be in a market overt or fair shall bind the owner be  not the seller of the property it must be in a market or fair where usual  thing of that nature be sell in the case in h a action of trespass be bring  for take so many slipper the defendant plead that he be himself possess of so  many piece of leather and bail they to one I S who deliver they to the  plaintiff and afterward the plaintiff make of they slipper shoe and boot and  justify the seize of they as his property and the plaintiff take exception  that the colour be not good and the first question be whether the plea do not  amount to the general issue and second whether the sale do give the plaintiff  so much as a colour to take they and the opinion of the court be that the plea  be good and that it be a good colour because the bailee have a lawful  possession in which case when he give they it be a good colour for the vendee  the plaintiff be call the vendee to take they in which case the plaintiff have  colour by the gift of he who have the lawful possession to punish any stranger  to he who take the good but it be hold to be colour only and judgement be give  for the defendant on the second point whether the property of the leather be  change by be make into shoe it be hold it be not atkins by this case it be  very apparent that the true owner of good do not lose his property by the sale  make by the possessor of they unless it be in the marketovert and in the case  state no regard be have to the vendees ignorance of the vendor want of title  no regard to the vendees come rightful to they as a purchaser without notice  no regard to the vendor have the lawful possession of they these case be all  ground on what be mention in Inst caveat emptor rob debet ante in all respects  restore but to impugn this doctrine some case have be cite Hussey versus  Jacobs mich W b b salk the Lord chandos lose money at play to Hussey and give  he a bill for it on Jacob who accept and afterward refuse to pay and a  assumpsit be bring against Jacob and he plead the car c a act against  deceitful disorderly and excessive game to which it be demurrer and the court  hold that though this be a kind of new contract yet all be find on the illegal  and tortuous win and only secure the payment of that money and therefore it be  within the statute the plaintiff be privy to the first wrong but if Hussey the  plaintiff have assign this to a stranger good fide upon good consideration he  have not be within the statute for he be not privy to the tort but a honest  creditor this case be also report in Carthew and there it be say by the court  that as to the inconveniency concern trade there can be none in this  particular case because the bill be go no further than to the first hand  videlicet to the hand of the plaintiff Hussey who win the money and so no  damage can here accrue to any person but to he who be certain within the  statute but if this bill have be negotiate and endorse to any other person for  value receive then it may have another consideration this seem to be very  reasonable for the acceptance make a new contract in the case of Hussey versus  Jacob the judgement be for the defendant because the acceptance be not  consider as distinct from the consideration the action be bring by the winner  yet in that case it be say that the acceptance make a new contract if  therefore it be between stranger to the game as between the acceptor and the  assignee I shall think the statute of game may be quite out of the case in  salk mich W Lord chief justice holt mention this case if a bank note be  Payable to a or bearer any person who find it be so far consider as the bearer  that a payment to he will discharge the bank and so salk Hodges versus steward  pasch W m b b if a bill of exchange be Payable to I S or bearer if the drawee  pay it to atkins the bearer though he come to it by trover theft or otherwise  it will discharge he but yet Lord chief justice holt in salk say that the  finder of such a bill have no property against the true owner if a three  person purchase a bank bill of the finder without fraud he have gain a title  to it in the usual manner by make himself the bearer of it for a valuable  consideration and on this be the opinion of Lord chief justice holt find that  a property be create in the bearer in respect to the usual course of business  and transaction of this sort in which the trade with bank note have be look on  as change money for money or gold for silver where a bank note be Payable to  the bearer it be consider as cash and the delivery of the note by the course  of business do create atkins er p a property in the person who become the  bearer of it for ready money but there be no such course of trade in respect  to the gain of property in good property by the rule of law do not follow the  possession unless in case where the true owner have no mark to ascertain his  property as in money vide cro Elizabeth Higgs versus holiday where it be hold  that if a man deliver money to another the property thereof be in the bailee  because it can be know ford versus Hopkins salk trover for million lottery  ticket upon evidence it appear that the plaintiff have give the ticket in  question to a goldsmith to receive the money due on they that some payment be  due and some be not that this goldsmith have receive ticket of the defendant  and give he a note to pay he so many million lottery ticket that the plaintiff  ticket be deliver to the defendant by the goldsmith upon this note and it be  hold by Lord chief justice holt that if money be steal and pay to another the  owner of the money can have no remedy against he that receive it but if bank  note exchequer note or million ticket or the like be steal or lose the owner  have such a interest or property in they as to bring a action into whatsoever  hand they be come this must mean that the owner can bring a action for they  into whatsoever hand they come without a valuable consideration pay for they  for if it be not thus understand what holt say here will not agree with his  former opinion fol and holt say further that money or cash be not to be  distinguish but these note or bill be distinguishable and can be reckon as  cash and they have distinct mark and number on they but if they have be sell  for a valuable consideration before the money have become due he doubt whether  it will have transfer the property and he hold that by the delivery of the  plaintiff ticket to the defendant the property of they be not change atkins in  the case at bar the owner be find to have give no power to Seamer to sell  these jewel and no case have be cite in which a disposition make by the mere  possessor of good have be hold to change the property of the owner in a case  of good that have mark whereby they may be know and those case relate to the  transfer of bank note depend on the particular circumstance in respect to  these bank note be consider as cash the case that warrant this distinction be  the case of the bank of England versus Newman determine by Lord chief justice  holt pasch W assumpsit for pound on the general issue the evidence be that  John Bellamy have give a note to the defendant for pound Payable to he or  bearer six month after date the defendant go to the bank and negotiate it with  the bank discount interest for the same but do not endorse the bill Bellamy  break not have pay this bill and the bank bring this action against Newman and  the jury find for the plaintiff but the court grant a new trial and hold this  to be a verdict against law and holt say if a bill or note be Payable to a man  or order and he deliver it for ready money and not for money antecedent due or  lend upon it it be a sell of the bill like a sell of tally in bank bill and if  no endorsement be make thereon the vendee be without remedy against the vendor  but if there be a endorsement he may have remedy against the endorsers provide  he demand the money of the drawer in convenient time and therefore the bank  have no remedy against Newman though they have advance the money and the court  look on it as a sale of the note this case show that the transfer these note  be consider in the same light as the change money for money take it then that  the property of sir John hartop be not change by the disposition of these  jewel make by Seamer as consider at commonlaw the next matter to be consider  will be whether the place where the pawn be find to be make will entitle the  defendant to detain they it be find that Seamer after he have break open the  bag and take out the jewel and carry they to the defendant shop which be a  open public shop in fleet street in the city of London where the defendant  carry on the trade of banker and also trade in jewel and frequent lend money  on the security of jewel and in the public shop of the defendant the say  Seamer borrow of the defendant pound and deposit the jewel as a security for  the same on this find the custom of London as to sale in marketoverts have be  insist on for the defendant and that pawn come within that custom atkins as to  this it be answer b sir John strange that no custom be find by atkins er p  this special verdict and therefore the court can judicial take notice of this  custom and we be of opinion that the court can judicial take notice of it on  this special verdict in the case of Arguille v hunt stram S c in this court  Trin g a prohibition be move for to the spiritual court for a suit there for  call a woman whore in London and the want of jurisdiction appear on the face  of the libel but because the custom of London to cart whore wag not set forth  in the libel the prohibition be deny and it be determine that the court can  not judicial take notice of the custom of London and the same thing be also  determine in Carthew but it be say for the defendant that this custom need not  be find by the jury because it can be prove by witness but must be certify by  the recorder of London but I think this no sufficient answer to the objection  arise from the want of find the custom in the case of day versus savage hob it  be cite to have be adjudge that the custom of London that every day there  except Sunday be a marketovert ought to be try by the jury and not by the  certificate of their recorder but that have be since determine to be otherwise  in the case of Appleston versus Stoughton cro car sir William Jones but in all  the case the custom be either plead special as in cro James or else it be find  by the jury and if this be so that the court can judicial determine of the  custom of London but they ought to be plead or find then what be insist on as  to pawn be to be take to be equal to a sale will be quite out of the question  but however we be of opinion that take the custom of London to be as state in    b this custom do not extend to pawn it be a constant rule that custom be to  be take strict Perkins see noise Max side lamb then since the custom be to  have a literal and strait interpretation as the custom be only for a sale in  open shop to bind the property of a stranger that custom can extend to a pawn  which be a imposition quite variant from a sale by a sale the vendee can  transfer the thing to any other and trade and traffic be promote thereby but  it be quite otherwise in the case of pawn for they tend to stop the change of  the property of the thing that be pledge and therefore if there be any  difference between a sale and a pawn that be a sufficient reason why the  custom which be affix to the one shall not extend to the other and therefore  the question be not whether it be a atkins reasonable custom that a pawn in a  open shop in London shall bind the property of a stranger but the true  question be whether a pawn and sale be the same for if they be not the same  then pawn will not fall within the custom that a sale in marketovert in a open  shop in London bind the property of a stranger to show that pawn good in  London will not bind the property of a stranger I will mention the case in the  yearbook h p and be in point it wag a information in the exchequer for the  king jewel the defendant plead the custom of London that if any good be pawn  there the pawnee may detain they until the money lend upon they be pay and  plead further that he do not know that they be the king jewel and that they  have not the king arm or mark upon they and to this plea there be a demurrer  and judgement for the king because it be not a good custom that a pawn shall  bind the property of a stranger and though it be say at the bar the judgement  in that case be give on another point that the custom shall not bind the king  by reason of his prerogative yet it be not so for both point be resolve and  judgement be give upon both and Jenkins in abridge the case fol say that the  custom of London do no where extend to the king good nor to a pawn of they as  there be no custom find by the verdict and as there be no instance that the  custom of London have ever be allow in case of a pawn but a resolution in the  yearbook and the opinion of judge Jenkins be to the contrary I think the  defendant can have any title to retain these good on the foundation of such a  custom much be say at the bar upon the act against broker I James ch which in  the preamble of it be say to be make for the defence of honest and true man  property and interest in their good what be say upon it be very material but  as the construction of this act be of great consequence to the trade of London  we have avoid give any opinion about c atkins er p it be unanimous for the  plaintiff without the aid of this statute as my brother chapel before he go  out of town declare he agree with we entire