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the request in the defendant's letter of the 9th to transfer all the property which might exist in his hands. The agent of the bankrupt was bound to hold in his hands goods to the amount necessary to cover the bills, especially after the order and agreement by him to act on it. He was then in the nature of a trustee for the defendants. The letters, therefore, must be taken to apply to the goods of the value of 38007. which were in the hands of Rego at the time. In Row v. Dawson, 1 Ves. sen. 331, A. borrowed money of B. and gave him a draft upon a fund due to A. out of the Exchequer, and became bankrupt; and it was held by Lord Hardwicke that that was an equitable assignment thereof to B. for val uable consideration, and that it should prevail against the bankrupt's assignees. In Yeates v. Groves, 1 Ves. jun. 280, the holder of a note gave it up on receiving an order for payment of the amount out of the purchase-money of a house; the purchaser agreed to give notice to attend when the deeds and money were ready, and the holder did so attend, but before the business was over the drawer was arrested, and soon after became bankrupt. The Lord Chancellor held, that the order operated as a transfer of the money. The defendants here had an equitable title to be paid out of the proceeds of particular property, before the act of bankruptcy, and if the general assignment has relation to the act of bankruptcy so as to avoid all mesne assignments, why should not the delivery in this case have relation to the time of the agreement and the order given by the bankrupt to Rego? Cur. adr. vult.

[*392

LITTLEDALE, J. now delivered the judgment of the Court. This is a special case which was argued in Trinity term last before the late Lord Tenterden, my Brothers Parke, Taunton, and myself. The action was in trover, to recover the value of a quantity of cotton goods, which came to the possession of the defendants on the 30th of June 1829, in the Brazils, and were afterwards sold by them. On the 20th of May, an act of bankruptcy was committed by the bankrupt Fortunato, and a commission issued on the 23d of June, under which the plaintiffs were appointed assignees. The goods in question were part of some consignments made by the bankrupt at different times to a person of the name of Rego at Bahia; against these consignments the bankrupt drew on Rego bills of exchange, which were negotiated by the defendants indorsing them. No goods appear to have been specifically appropriated, by the bankrupt's directions, to the payment of any particular bill; but the bills were drawn generally, though proportioned in amount in a certain degree to the value of the consignments. In March 1829, information was received by the defendants in London, that some of the drafts were refused acceptance, in consequence of which they [*393 became liable on their indorsement, and being apprehensive that others would meet with the same fate, they called upon the bankrupt to make provision for their re-imbursement; a correspondence followed, and the question in this case turns mainly upon its meaning and effect.

It is quite clear that the assignment vested in the assignees all the personal estate and effects in which the bankrupt was, at the time of the act of bankruptcy, beneficially interested (with the statutory exceptions, 6 G. 4, c. 16, s. 81, 82, 86, 112,); but as the object of the assignment of the bankrupt's property is, that it may be applied to the payment of his debts, it is equally clear that nothing passed by it which the bankrupt then held in trust to others, or in which he had only a mere legal interest, Scott v. Surman, Willis, 400; Winch v. Keeley, 1 T. R. 619; Carpenter v. Marnel, 3 B. & P. 40; Gladstone. Hadwen, 1 M. & S. 517; but if, at the time of the act of bankruptcy, the bankrupt possessed a possibility of interest, from which a benefit to his creditors might result, (Per Lord Avanley, 3 B. & P. 41,) if he had the legal interest in any property, and it was uncertain whether he would hold any part of that property, or if any, what part, as a trustee for others, the whole would pass by the assignment: it could not remain in the bankrupt subject to be transferred on a future contingency and if it did pass to the assignees, it could not be divested out of them in whole or in part by the happening of events subsequent to the

act of bankruptcy, which might make them hold the whole, or some specific part as trustees merely; for there is no provision in the statute which *takes *394] a right out of the assignees, that has once been vested in them. The whole question then is, not whether the plaintiffs were or were not trustees for the defendants for the whole or part of those goods at the time of the action brought; but whether the property in them, or any part of them, vested in the plaintiffs by virtue of the assignment. To decide this, we must refer to the terms of the bargain between the bankrupt and defendants contained in the two important letters of the 4th and 9th of April.

The material parts of that of the 4th of April are as follows:-"As indorsers of the bills, they will, of course, come back upon us first; however, we most fervently hope that such an unpleasant event will not take place, and that Mr. Rego will pay them: we have too high an opinion of your honour to suppose for a moment that you would have drawn these bills without having the means necessary for their discharge in the hands of Mr Rego, and therefore we most earnestly request that you will write to Mr. Rego by the first vessel, with orders that in case he does not pay your drafts he will immediately hand over such property as he may have of yours, of an equivalent value to the bills not paid by him, to our agent Mr. Vogeler, of Bahia, whom we have requested to pay the bills for our house," &c. The bankrupt answers on the 9th of April, "Agrecably to your injunctions, I will write to Mr. A. C. Rego, per brig Wavertree, to sail on the 12th of this month, directing him to hand over to Mr. Vogeler property of mine in his hands to cover the amount of bills that eventually may not be paid. I say eventually, because I do still hope that some of them will be accepted; for the cause of Mr. Rego not having done so *395] *was the impossibility of realizing and collecting debts. I beg to assure you I will do all that is due of me to secure your property, and you shall not be sufferers in the least by this unfortunate transaction beyond some delay."

The proposal by the defendants is, that if Rego does not pay the bankrupt's drafts, he, the bankrupt, should hand over to the defendant's agents so much property in his hands as may be of equivalent amount to the drafts unpaid. The letter of the 9th of April is nothing more than an assent to the defendants' proposal. It does not extend or vary it, and constitutes a binding agreement between the parties to the same effect.

In this agreement the event upon which the property is to be transferred is uncertain, and the amount to be transferred is also uncertain. If Rego paid the bills, no goods would be in that case subject to delivery to the defendants; if he did not, and had sold the goods previous to the communication from the parties being received in the Brazils, no goods would be capable of being delivered; if the goods existed at that time, the value of the goods to be delivered, and the specific goods, would be still uncertain and unascertained.

It is therefore quite impossible to contend that the legal property in any part of the goods then in Rego's hands passed by this bargain to the defendants; and it seems to be equally impossible to say that the contract operated as an equitable assignment of the whole or of any specific part at that time or before the act of bankruptcy; for it is clear that the parties to it do not consider that the whole or any specific part is then to be held by the bankrupt for the defendants, or is *396] absolutely, and, at all events, to be assigned to the defendants at *any future time. Until certain contingencies happen, and until something more is ascertained and done, the equitable as well as the legal interest must be in the bankrupt; and, if so, it must pass to his assignees.

It is not necessary to decide, whether the agreement gave an irrevocable, though contingent, interest in the goods, and whether the assignees, in the events which have since happened, are or are not trustees for the defendants, and bound to repay out of the proceeds of the goods in question the amount which they have paid. The defendants may have an equitable right to be paid out of the VOL. XXIV.-12

goods or their proceeds; but the question, whether they have such a right, and the mode of enforcing it, belongs to a court of equity.

We have passed over the letter of the 11th of April without notice, because that letter was not communicated to the defendants, and does not form a part of the contract between them and the bankrupt. Taken alone, it is a mere countermandable authority, which was countermanded by the bankruptcy. We therefore think, that the plaintiffs are entitled to judgment. Judgment for the plaintiffs.

*The Mayor, Aldermen, and Burgesses of MACCLESFIELD v. PED

LEY.

[*397

Quære, if the grantee of a newly created market can, by virtue of such grant merely, maintain an action for disturbance of franchise, against a person selling marketable articles in his own shop, within the franchise, but not within the limits of the market place, on the market day.

But a claim by immemorial custom to exclude others from selling such commodities on the market day, except in the market place, is valid in law.

And where a market for meat, &c., was proved to have been in existence in the reign of James the First, proof that the grantees of the market had for the last hundred years appointed market-lookers, that no butchers' shops had existed out of the market place until 1810, and that the shops then set up were objected to by the grantees, was held to be sufficient evidence of such immemorial right.

ACTION on the case for an injury to the plaintiffs' market in the borough of Macclesfield. The declaration alleged, that the plaintiffs were "lawfully possessed of" a certain market, and that butchers and other persons selling their flesh-meat on the market days in that town, ought not to sell it in private houses, but in the open public market on the plaintiffs' stalls, or on stalls placed there by their consent, paying stallage; and the breach was, that the defendant sold meat on market days in a private house in the town. Plea, not guilty. At the trial before Bolland B., at the Chester Spring assizes 1832, the plaintiffs produced, first, a charter, dated the 29th of May, in the forty-fifth year of Henry III., whereby Edward Earl of Chester granted and confirmed to the burgesses of Macclesfield, "that the town should be a free borough, and that the burgesses should have a merchant's guild, and that they should be quit of toll, passage, pontage, stallage, and other customs;" secondly, a charter of the 18 Car. 2, reciting, "that the burgesses and inhabitants of that borough had used and enjoyed divers liberties, privileges, jurisdictions, courts, franchises, customs, powers, authorities, immunities, pre-eminences, lands, tenements, possessions, and other hereditaments; and had been endued with the same, as well by force of divers charters, letters-patent, grants, and confirmations *by King James the First, and by divers other kings and queens of England, as [*398 by reason and pretext of divers ancient and laudable customs and prescriptions in the same borough during the whole time aforesaid used and approved. It then ordained, granted, ratified, and confirmed to the mayor, aldermen, and burgesses, and their successors, the incorporation and body corporate aforesaid, and all and singular the liberties, free customs, franchises, immunities, exemp tions, acquittances and jurisdictions of the same body corporate; and such lands, tenements, markets, fairs, tolls, customs, liberties, privileges, franchises, immunities, powers, authorities, acquittances, jurisdictions, profits, advantages, emoluments, and hereditaments whatsoever, which the mayor, aldermen, and burgesses, or their predecessors, had lawfully had, held, used or enjoyed, or ought to have, hold, &c., by reason or pretext of any charters or letters-patent by King James the First, or by any kings or queens of England, theretofore made, granted, &c., or by any other lawful mode, right, or custom, use, pre

scription, or title theretofore used or enjoyed; the same to be had, held, &c., by them in as ample manner as before. The plaintiffs further proved, that from the year 1734 the corporation had appointed market-lookers, whose duty it was to go through the market on market days, and inspect the flesh-meat, and seize it if unwholesome; and that officers so appointed had from time to time seized unwholesome meat. The market days were on Tuesdays and Saturdays. There were eighty butchers' stalls or shambles in the market place: but before 1810 there were no butchers' shops in the town out of the market place, and then they were objected to by the corporation.

*399] *It was contended, that on this case the plaintiffs ought to be nonsuited; but the learned Judge was of opinion, that there was sufficient evidence that the market was an ancient market for meat, and he thought the appointment of market-lookers by the corporation, and the non-existence of butchers' shops before 1810 were evidence to go to the jury, that the exclusive right contended for existed. The defendant then called some witnesses, who stated that before 1810 there were butchers' shops out of the market place where meat was sold on market days. The jury having found for the plaintiffs, a rule nisi was obtained for a new trial, on the ground, first, that the learned Judge had misdirected the jury, by stating that the right to exclude individuals from selling in private shops resulted from the right to the franchise of a market, unless the defendant could shew the contrary, whereas, by law, such right of exclusion could only exist by immemorial custom; and, secondly, that the question, whether there was any such immemorial custom was not left to the jury. The learned Judge, in his report, stated, that he had not stated to the jury, that the plaintiffs had the right contended for as incident to the franchise of the market, but that he treated the right as one which could exist only by virtue of immemorial custom, and left it to the jury, on the evidence, to say whether such exclusive right existed.

Jervis and Lloyd, in Trinity term, shewed cause. (a) The Judge having left it to the jury on the evidence to find whether there was an immemorial right in *400] the corporation to prevent persons from selling out of the market *on market days, the only question now is, whether the verdict was agains evidence? Now, first, the grantee of an ancient, though not an immemorial market, may have the right of preventing others from selling on the market days within the limits of his franchise. The king, when he grants the franchise of a market within a given district, may, provided he does not interfere with vested rights, prevent other persons from selling within that district on market days, and where the right is proved to have been exercised from early times, it must be presumed to have been part of the grant, Moseley v. Walker, 7 B. & C. 40. Here the evidence, and especially the fact that there were no butchers' shops out of the market place before 1810, shews that the right did exist.

But, secondly, the grant of a market necessarily confers on the grantee the right of excluding all others from selling on market days in houses within the limits of his franchise. In the Prior of Dunstable's case, (cited in the City of London's case, 8 Co. 127,) where the action was similar to the present, it is laid down, that "if the prior had a market within the town, and is lord of the town, you cannot prescribe to sell meat in your own house on the market day; for the market cannot be but in an open place, and the prior then would lose the benefit of his market, if they might sell their wares in their houses; and also where he has the correction of the market, and to see if the things which shall be sold are lawful and vendible, which cannot be tried by his officer if it be not in open market, and also he would lose his toll of the things sold." Campbell, Temple, and Tyrwhitt contrà. There was no evidence to shew that the market was immemorial, and very slight evidence that the corporation had existed from time immemorial. The charter of the

*101]

(a) Before Lord Tenterden, C. J., Littledale, Parke, and Taunton, Js.

45 Hen. 3, does not mention a market. The charter of Car. 2, reciting that of Jac. 1, does mention a market for the first time. It may be assumed, therefore, that the market commenced within the time of legal memory; and the king cannot make a grant of a market within time of memory, so as to prevent persons from dealing in merchantable commodities in their own houses, though such a right may exist if it be immemorial. That appears to have been the opinion of Holroyd, J. in Moseley v. Walker, 7 B. & C. 40. [LITTLEDALE, J. In Prince v. Lewis, 5 B. & C. 363, it was taken for granted that the market was not immemorial, but no doubt was made that the action would have lain if the lessee had not encumbered the space.] It was not necessary there to take the present objection. [LITTLEDALE, J. In Comyns's Digest, Market, F. 2, it is said that the owner of a house next to a fair or market cannot open his shop for selling in a market without payment of stallage; for if he takes the benefit of the market he ought to pay the duties there, and 2 Roll. Abr. 123, 1. 30, is cited.] The Prior of Dunstable's case, (cited in 8 Co. 127,) is the only authority to shew that the right of exclusion is incident to the general grant of a market; but there the declaration charged that the defendant sold in his own house secretly, and the judgment went, in a great measure, on that; and the general point was not decided in Moseley v. Walker, 7 B. & C. 40. The jury were not justified by the evidence in finding that there were no shops, out of the marketplace, where meat was sold on market days before the time of legal memory. If the charter of Jac. 1 had been produced, it might have thereby appeared whether or not the market was then granted for the first time. At all events, it might have been shewn by the charter itself, that the exclusive right now claimed was thereby granted. No such grant appeared. There is no ground for assuming that the right is generally incident to the grant of a market; and there was no evidence of a market before Jac. 1; if so, it commenced within the time of legal memory, and consequently there could not be an immemorial custom to exclude persons from selling in their own shops,

[*402

Cur. adv. vult. LITTLEDALE, J., in the course of this term, delivered the judgment of the

Court.

This case came before the Court on a motion for a new trial, against which cause was shewn in Trinity term. (He then stated the substance of the declaration.)

The cause was tried before my Brother Bolland, at the Chester Spring assizes, 1832, when a verdict was found for the plaintiffs. On the motion for a new trial, it was objected that the learned Judge had misdirected the jury, by stating that the right to exclude individuals from selling in private shops resulted from the right to the franchise of a market, unless the defendant could prove a custom to the contrary, whereas, by law, such right of exclusion could only exist by immemorial custom; and that the learned Judge had not left to the jury the question, whether there was such an immemorial custom with respect to this market.

Upon considering the report, and after conferring with the learned Judge, we are of opinion that the *objections urged in support of the motion for a [*403 new trial cannot be sustained. The learned Judge never stated that the plaintiffs had the right contended for as incident to the franchise of the market. He treated this right as one which could exist only by virtue of immemorial usage, and that question, substantially, was left to the jury.

There is no doubt that there was sufficient evidence to prove such a custom; for it clearly appeared upon the testimony of several witnesses, that no butcher's shop existed in the town of Macclesfield until of late years, and when these shops were first opened, the plaintiffs objected to them.

It was not material, in support of the custom contended for, to prove that this was a corporation by prescription: the question was, whether this was an immemorial market, and whether the custom existed from time immemorial,

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