For the security of dealings in markets, contracts were formerly required to be made in the presence of an officer appointed for that purpose by the lord of the market, for which service he received from the, buyer a small remuneration called market-toll. [TOLL.] It is a rule of the common law that every sale in market-overt, (open market) transfers to the buyer a complete property in the thing sold ; so that however defective the title of the vendor may be, yet that acquired by the vendee is perfect, even where the property belongs to a person who is under legal disability, as an infant, a married woman, an idiot, or a person in prison or beyond sea. In London every shop is market-overt for goods usually sold there.
This rule is subject to certain exceptions and restrictions. A sale in market-overt does not bind the rights of the crown; nor does it bind the rights of others, unless the sale be in an open place, as a shop, and not a warehouse or other private part of the house so that those who go along cannot see what is doing, and not in a shop with the shop door or windows shut, so that the goods cannot be seen. The articles bought must be such as the party usually deals in. The sale must be without fraud on the part of the buyer, and without any knowledge on his part of any want of title in the vendor. If the seller acquire the goods again, the effect of the sale in barring the true owner is defeated. There may be a sale and contract ; and therefore the property is not altered in market-overt, in goods given, or in goods pawned, or in goods sold to the real owner. The sale must be between sunrise and sunset ; and must be commenced and completed in the market.
By 21 Henry VIII. c. 2, " If any felon rob or take away money, goods, or chattels, and be indicted and found guilty, or otherwise attainted upon evidence given by the owner or party robbed, or by any other by their procurement, the owner or party robbed shall be restored to his money, goods, or chattels." Since this statute, stolen goods, specified in the indictment, have, upon the conviction of the offender, been restored to the prosecutor, notwithstanding any sale in market-overt.
As stolen horses can be easily conveyed to distant markets, the legis lature has frequently interposed to protect the owner against the consequences of a sale in market-overt. Thus, by 31 Elizabeth, c. 12, "No person shall in any fair or market sell, give, exchange, or put away any horse, mare, &c., unless the toll-taker, book-keeper, bailiff, or other chief officer will take upon him perfect knowledge of the per son that shall so sell, give, or exchange any horse, &c., and of his true name, surname, and dwelling-place, and shall enter the same in a book there kept for sale of horses ; or else that he so selling or offering to sell, &c., any horse, &c., shall bring unto the toll-taker or other officer
aforesaid of the same fair or market, one sufficient and credible person, that can testify before such toll-taker, &c., that he knows the party that so sells, &c., such horse, &c., and his true name, surname, mistery, and dwelling-place, and there enter in the book of the toll-taker or officer, as well the true name, surname, mistery, and place .of dwelling of him that so sells, &c., such horse, &c., as of him that so shall testify his knowledge of the same person, and shall also enter the true price that he shall have for the same horse, &c." And by sect. 4, "If any horse, &c., be stolen, and afterwards sold in open fair or market, and the sale shall be used in all poiuts and circumstances as aforesaid, yet the sale of any such horse, &c., within six months after the felony, shall not take away the property of the owner, so as claim be made within six months, before the mayor or other head officer of the town or parish, if the horse, &c., happen to be found in any town corporate or market-town, or else before any justice of peace of the county near to the place where such horse, &c., shall be found, if it be out of a town corporate or market-town, and so as proof be made within forty days, by two sufficient witnesses, before such head officer or justice, that the property of the horse, &c., so claimed, was in the party by whom such claim is made, and was stolen within six months next before such claim, but that the party from whom the horse, &c., was stolen may at all times after, notwithstanding any sale in fair or market, have property and power to take again the said horse, &c., upon payment or offer to pay the party that shall have the possession and interest of the same horse, &c., if he will accept it, so much money as the party shall depose and swear before such head officer or justice of peace, that he paid for the same bond fide without fraud or collusion." This statute extends to a horse taken by wrong, though it be not stolen.
A market is generally appointed to be held once, twice, or three times in a week, for the current supply of commodities, mostly of pro visions. A large market held once or twice a-year is called a fair; and, according to Lord Coke, a large fair held once a-year is a mart.
Fairs have all the legal incidents of markets, and are subjected to further regulations by 2 Edw. III. c. 15, one of which requires, that at the opening of the fair, proclamation be made of the time it is to continue.