Baynes Case.
10. AT the Sessions holden at Newgate presently after this Term the case was this; one Baines with another came in the night time to a Ta∣vern in London to drink, and after they had drunk, the said Baynes stole a cup in which they drunk in a Chamber of the same House; the Owner of the said House, his Wife, and servants then being also in the House, and the cup being the Owners of the said Tavern, wherupon he was indited and com∣mitted, * 1.1 & this matter appeared in the Inditement, and agreed by Popham, An∣derson, and Periam with the Recorder and Serjants at Law then being there, that this was not Burglary, and yet it was such a Robbery, whereby he was ousted of the benefit of his Clergy by the Statute of 5. E. 6. Cap. 9. and was ••anged.
11. ANd at the Sessions then next ensuing 〈◊〉〈◊〉 holden, upon one who had stolen a silver Bason & Ewer of the then Bishop of Worcester, & the sale made openly in the day in a Scriveners shop in London to a stranger, the question was demanded of the Court whether the property were changed by this Sale, so that the Bishop shall not have his Plate againe, because it was al∣ledged that they prescribed that every one of their shops in London are good Markets overt through all London every day in the week but Sunday; But agreed by Popham, Egerton, Anderson, Brian, and others skilfull in the Law then being there, that such a generall custome is not good, and that this Sale made there, albeit it were openly in the shop so that every one passing by * 1.2 might see, it shall not bind the property as it shall doe in Market overt; for a Scriveners & Cutlers Shop or the like, is not proper for the Sale of I late nor a place to which men will go to seek for such a thing lost or stole; But a Gold∣smiths Shop is the proper Shop for it, as the Drapers Shop is for Woollen cloath, or the Mercers Shop for Silk, and the like, and to such men will go to seek for things of the like nature that are lost or stolen, and not to a Scriveners Shop or the like.
And they agreed also that a private Sale made in the Shops which are pro∣per to the nature of the thing sold, so that the Passers by cannot in reason see it in their passage, cannot bind, for reason, (upon which the Law is founded) will not admit any such custome.