A person buying a stolen horse, though in a public market, is liable in restitution to the owner, and has recourse against the seller.
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One Ferguson, pursuing one Forrest, for restoring to his of him mare, which properly belonged to him, and was stolen from him off the ground of the lands of———, whereupon he dwelt, and which mare was then, and before in his possession, and was his own mare, so known to the neighbours about in the country, and the defender alleging, That he ought to be assoilzied, because he bought the mare libelled, in the open market, at a public fair, in the market time of day, and paid the price thereof, which ought to liberate the defender, being so bought and sold in a burgh royal, in a public ordinary fair day kept in that town; likeas, the mare is now dead, and so there is no place nor possibility of restitution, albeit the action might be sustained;——The Lords repelled the allegeance, and sustained the action, which was found not elided by this exception of buying in a public market; for the excipient ought to have taken borgh and ham-hold from the seller, conform to the old laws of the realm, if he would have provided for his own security; and the dying of the mare, albeit it made it impossible to restore her, yet in place of that, the Lords found the defender should refund the price. See Moveables.
Act. Nairn.Alt. Johnston.Clerk, Hay.
Fol. Dic. v. 1. p. 294. Durie, p. 885.
