act of bankruptcy, which might make them hold the whole, or some specific part *394] as trustees merely; for there is no provision in the statute which *takes 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 pos sessed 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

179 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 [*402 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,

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 new trial cannot be sustained. The learned Judge never stated that the [*403 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,

for the owner of the market to prevent private individuals from selling in shops out of the market; if it was so, and such custom existed, the market might have come into the hands of the plaintiffs, in modern times, by a grant from the crown or a subject, and the plaintiffs would have a right to enforce the

custom.

In this view of the case, it is unnecessary to give any opinion whether the grantee of a newly created market could bring an action for the disturbance of his franchise against a person who did no more than sell, himself, in his own shop, not within the limits of the market-place, marketable articles on the market days. It may, however, be observed, that no case has decided that this act, simply, is an injury to the market in point of law. But it is equally clear, on the other hand, that a custom *to exclude all others from selling such *404] commodities on the market day, except in the market, is valid in law. The like custom was supported in the case of the Manchester Market, Mosley v. Walker, 7 B. & C. 40, which much resembles the present case. The abbot of Westminster had formerly a similar privilege by custom, (as appears from the Gravesend case, 2 Brownl. 179, which was sold to the city of London, and many analogous usages are to be found in the books, and exist in different places. Indeed, the validity of such a custom, if established, was not disputed on the argument. The rule must therefore be discharged. Rule discharged.

CLARKE and Others v. FELL and Another, Assignees of MOTT, a Bankrupt. January 12.

A tradesman undertook to do work upon an article delivered to him, for a person to whom he was indebted, and it was agreed that the work should be paid for in ready money. He afterwards became bankrupt: Held, that the act 6 G. 4, c. 16, s. 50, (which provides for the setting off of cross demands where there has been mutual credit between the bankrupt and a party claiming on his estate), did not, in this case, render the assignees liable in trover for refusing to deliver such article to the creditor on his offering to set off the price of the work against his own demand.

TROVER for a stanhope. At the trial before Denman, C. J., at the sittings in London after Michaelmas term, 1832, it appeared that the plaintiffs, in April, 1831, sent the carriage to Mott to be repaired. They were, at that time, holders of a bill accepted by him for 247., payable on the 19th of June, 1831. Mott afterwards became bankrupt, and the stanhope passed into the hands of his assignees. The repairs were done, and the charge for them was 207. The plaintiffs demanded the stanhope of the assignees, and proposed to strike off the 201. *from the bill, which they still held, but the assignees refused to *405] deliver it without actual payment. The case made on their part was, that, by agreement between the plaintiffs and Mott, the repairs were to be paid for in ready money; and that they were completed after the bankruptcy. The plaintiffs disputed these facts, and contended that the two sums of 247. and 207. were mutual debts at the time of the bankruptcy, and ought to be set against each other according to 6 G. 4, c. 16, s. 50. Denman, C. J., directed the jury to find for the defendants, if they should be of opinion that the agreement was for ready money, or that the repairs were completed after the bankruptcy: and the jury found for the defendants on both points.

Cleasby now moved for a rule to shew cause why there should not be a new trial, on the ground of misdirection. Even admitting the facts to have been as found by the jury, this was a case of mutual credit within 6 G. 4, c. 16, s. 50; and the effect of that section is to extinguish the debt on each side, except as to the balance, which may then be considered as a new debt: the lien, which attached to one of the original debts, is destroyed with the debt itself. A mutual credit, within the act, exists where there is a debt, or something that will ne