Sec 292

A party, therefore, who takes no title to a chattel, cannot ordinarily (excepting in cases of market overt, which in this country does not exist),8 or in cases where the owner is estopped by negligence, pass title to an assignee.6 Thus A., who by falsely pretending to B. that he is sent by C. for goods bought by C. from B., obtains such goods from B., passes no title by selling such goods to D., though D. buys bona fide;7 and the same rule has been held to apply to cases where A. obtains goods by false personation;8 and by a bare fraud without any contract to transfer property, or any transfer of property.9 Hence, where goods were obtained on the pretence of the party obtainins: being known to the seller, there being a mistake of identity induced by the buyer's fraud, it was held that the goods could be recovered from a third party, to whom they had been bona fide sold.1 - This distinction is clearly put by Mr. Benjamin.2 The vendor " may sue in assumpsit for the price, and this affirms the contract, or he may sue in trover for the goods or their value, and this disaffirms it. But in the mean time, and until he elects, if his vendee transfer the goods in whole or in part, whether the transfer be of the general or of a special property in them, to an innocent third person for a valuable consideration, the rights of the original vendor will be subordinate to those of such innocent third person. If, on the contrary, the intention of the vendor was not to pass the property, but merely to part with the possession of the goods, there is no sale, and he who obtains such possession by fraud can convey no property in them to any third person, however innocent, for no property passed to himself from the true owner.." The test is, did the alleged vendor intend to pass the property to the party taking? If so, the property passed, no matter how great was the fraud practised on him.3 And where there is an intention by the vendor to pass the title, no matter how fraudulently false may have been the transferee's representation of his condition and means, the title passes.4

Party without title cannot pass title.

1 Jordon v. Parke, 56 Me. 557; Field v. Stearns, 42 Vt. 106; Wiggin v. Day, 9 Gray, 97; Whitman v. Merrill, 125 Mass. 127; Hitchcock v. Covill, 20 Wend. 167; 23 Wend. 611; Devoe v. Brandt, 53 N. Y. 462; Am. Ex. Co. v. Willsie, 79 111. 92.

2 Supra, sec 233; Clough v. R. R., L. R. 7 Ex. 26; see Babcock v. Lawson, L. R. 4 Q. B. D. 394; Negley v. Lindsay, 69 Penn. St. 217; Lepper v. Nutt-man, 35 Ind. 384; Mendenhall v. Treedway, 44 Ind. 131.

3 Schutt v. Large, 6 Barb. 373.

4 Supra, sec 211; Adams v. Stevens, 49 Me. 362; Root v. Bancroft, 8 Gray, 619; White v. Wilson, 6 Blackf. 448; Burke v. Anderson, 40 Ga. 535; Young v. Cason, 48 Mo. 259.

5 Infra, sec 734.

6 See supra, sec 182, 211; infra, sec 733, 793.

7 Higgons v. Burton, 26 L. J. Ex. 342; Hollins v. Fowler, L. R. 7 H. L. 757; R. v. Gillings, 1 F. & F. 36; R. v. Hench, R. & R. 163; Cunday v. Lindsay, L. R. 3 Ap. Cas. 459; aff. Lindsay v. Cunday, L. R. 2 Q. B. D. 96; Hard-man v. Booth, 1 H. & C. 803; Moody v. Blake, 117 Mass. 23; Lecky v. McDer-mott, 8 S. & R. 500; Barker v. Dins-more, 72 Penn. St. 427; Striker v. Mc-Michael, 1 Phila. 89; State v. Linden-thai, 5 Rich. 237; State v. Brown, 25 Iowa, 561. As to bona fide purchasers see supra, sec 211, 291; infra, 347, 352, 733. That goods fraudulently obtained may be pursued, see infra, sec 734.

8 Kingsford v. Merry, 1 H. & N. 503; Cunday v. Lindsay, ut supra; infra, sec 730-2. See Thoroughgood's case, 2 Co. 9 a; Foster v. Mackinnon, L. R. 4 C. P. 704.

9 Ibid.