majority">GOLDTHWAITE, J.

The question in this case certainly deserves to be classed as one of the curiosities of the law ; and not the less so, because it seems to have been held, by at least one eminent judge, that the owner of a chattel stolen cannot have trover against one who purchases from the thief,' until after the conviction of the felon. [Gimson v. Woodfall, 2 C. & P. 41.] Chief Justice Best, before whom this case was tried, seems to have rested his decision on Harwood v. Smith, 2 Term, 750, but neither that nor any other adjudication in bank sustains it. In that case, the sheep, for converting which the defendant was sued, had been sold in mar*782ket overt and thus the title of the owner divested. This is the precise ground upon which the matter is put by Judge Buller, and it was only because the owner was entitled to restitution after conviction that the title was said to be in dubio ; nor must it be forgotten, the action was against one who never had possession after conviction. The title was given by the sale in market overt, and did not revest until the conviction, but the conversion by the defendant was after the one, and before the other. Although the impression is so common, that the owner whose goods have been stolen, cannot have restitution without a prosecution of the thief, yet it is entirely without foundation; as we will proceed to show.

By the ancient common law, a remedy was provided, in the nature of an action against the thief, called an appeal of larceny, in which, if the plaintiff succeeded, he not only had judgment of restitution, but effectually protected himself against future accidents of a like kind, by hanging the offend- or. It is of this proceeding that Sergeant Hawkins says, it seems to be agreed, that by the common law, restitution could not be had by any other prosecution whatsoever. [2 Hawk. 241, § 55.] To remedy this inconvenience, as early as the 21st year of Henry VIII, a statute was passed, directing the judges to award restitution when the felon was convicted by indictment, upon evidence given by the prosecutor. If he was convicted on other evidence, the crown took the felon’s goods as a forfeiture. But if before conviction, and before the officers of the crown seized the goods, the owner could possess himself of them, there never was any law to prevent him from so doing. Hawkins, in treating upon the appeal of larceny, says, “ I shall premise, that until such goods are seized to the use of the king ,or of some other person claiming them under the crown as being waifs, or the goods of a felon, Sfc. the rightful owner, without any fresh suit or appeal, may seize them wherever he finds them; but they shall not be restored to him after such seizure by others, without bringing his appeal,” <fcc. [2 Hawk. 239, § 39.] Nor was there ever any law in England, except that which relates to markets overt, which prevented the owner from having troyey against a third person, possessing himself of the stolen *783goods, without a right from the King, or some one entitled, to the forfeiture. Foxley’s case, (5 Coke, 109,) was this very action, brought by the owner against one who justified that the Queen was seized of the manor of N. P. and that certain persons unknown stole the sheep from the plaintiff, and brought them within said manor, and there left and waived them. Whereupon the defendant, as the Queen’s bailiff of said manor, seized them to the Queen’s use, as goods waived there. On demurrer, the bar was held ill, for it did not show the sheep were forfeited. Lord Coke there says, if the goods are not forfeited, “ the owner may take them when he will,without any fresh suit.”

Having thus shown, the doctrine has no other foundation than as connected with forfeiture, and even then only to a limited extent, it is wholly unnecessary to examine the matter further, as the notion of sales in market over has never obtained in this country. If the owner has the right of re-caption, we apprehend it carries with it the right of suit to the same extent as that of recaption. The plea itself is clearly bad, and therefore no notice of the replication is necessary. *’

Judgment affirmed.

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