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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 Bank

rupt. 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 *405] 201. *from the bill, which they still held, but the assignees refused to 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

[*406

cessarily end in a debt, from each party to the other, Rose v. Sims, 1 B. & Ad. 521. Here the bankrupt was indebted to the plaintiffs on his acceptance, and had the stanhope in his possession for repairs, which must necessarily have created a debt from the plaintiffs to him. The definition of a mutual credit in Rose v. Sims, 1 B. & Ad. 521, agrees with the *construction before put upon that term, in cases under the statute 5 G. 2, c. 30, s. 28, French v. Fenn, Cooke's Bankrupt Law, 65, 8th ed., Olive v. Smith, 5 Taunt. 56. In Rose v. Hart, 8 Taunt. 499, where the doctrine was in some degree limited, Gibbs, C. J., nevertheless lays it down, that by mutual credit are meant such transactions as must, from their nature, terminate in debts. The clause there in question, in 5 G. 2, c. 30, does not materially differ from 6 G. 4, c. 16, s. 50, except that in the latter it is said, that one debt or demand may be set against another; in the former the word "debt" only is used. As to the stipulation for ready money, the only effect of that was to make the sum due as soon as the repairs were finished; it does not affect the question of mutual credit and the plaintiffs did, when the repairs were finished, offer payment by striking off the 207. from the amount of the bill of exchange. Nor is it material that the amount to become due for the repair was not ascertained at the time of the bankruptcy, the work not being then finished. The assignees must either repudiate the contract or affirm it. In the former case, they are without defence to this action; in the latter, as was held by Lord Kenyon in Smith v. Hodson, 4 T. R. 217, they must adopt the transaction with all its consequence, and subject to any defence by the opposite parties which they might have made to an action by the bankrupt himself: those parties, therefore, may set off the debts owing to them by the bankrupt, against the claims of the assignees. The transaction was inchoate before the bankruptcy: the assignees take it up, subject to the rule of mutual credit, which would have attached if the work had been completed by the bankrupt.

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*LITTLEDALE, J. I think, under the circumstances of this case, there was no mutual credit of a nature to exclude the lien insisted upon by the defendants. If there had not been a contract to pay ready money, I should have been of a different opinion; for, although in that case there would still have been a lien on the carriage for the work done by the bankrupt, yet, as the bankrupt was also indebted to the plaintiffs, the question would have been on which side the balance lay, and that was in favour of the plaintiffs. But the agree ment to pay ready money makes all the difference; the plaintiffs could not have insisted on a delivery of the stanhope by the bankrupt until the sum due for repairs had been paid by them in hard cash; if they had brought trover, the defence would have been, that they had not paid ready money for the repairs; and it would have been no answer to say that more was due to them from the bankrupt. If, indeed, the defendants had delivered the stanhope without insisting on the agreement for ready money, and afterwards brought an action, the set-off on the other side would have been let in, Cornforth v. Rivett, 2 M. & S. 510. Since, then, the plaintiffs, before they could have insisted upon the delivery of the stanhope, were bound to pay for the repairs, and the bankrupt might, on that ground, have defended an action of trover against them, the assignees, in adopting his contract, are entitled to the same benefit. The other point, therefore, as to the consequence of the work being completed after the bankruptcy, does not arise, though it might be argued from the case of Trewhella v. Rowe, 11 East. 435, that the assignees, under these circumstances, might be considered as having *taken upon themselves the fulfilment of a contract made before their title accrued, between the bankrupt and the plaintiffs: and that if the [ *408 assignees so adopted it, they must be taken to have done so on the original terms. But it is unnecessary to consider this point. There will be no rule.

TAUNTON, J. I think there was no misdirection in this case. As to one point, which was mentioned incidentally, I am of opinion, that the offer by the plaintiffs to deduct the charge for repairs for the amount due on the bill was

different from an offer of ready money; though if there had been a tender of ready money, the subsequent detaining of the carriage would have been a wrongful conversion. Then as to the more general question. For some purposes there was a mutual credit in this case; if the plaintiffs had gone before the commissioners to prove their demand on the bill, there was so far a mutual credit that the assignees might have said, "There is so much due to the estate for repairs; the commissioners must state the exact balance, and allow that and no more to be proved." And this is for the benefit of the party trusting the bankrupt. But no such proceeding took place if it had, the right to detain would have been gone, because the assignees would, in this way, have received payment of their demand. The question here, therefore, is, whether the credit was such as, on the bankruptcy of Mott, annulled his bargain with the plaintiffs; that bargain being, in effect, that unless he was paid in ready money, he should be at liberty to detain the carriage. I think the bankruptcy did not annul that bargain, nor deprive the bankrupt's estate of the benefit of that lien. There *409] was no payment, for the offer to allow a set-off was not equivalent to one; and the mutual credit was not of such a nature as to destroy the lien. As to Rose v. Hart, 8 Taunt. 499, all that was decided in that case was, that the defendant could not, by virtue of a supposed mutual credit, detain the goods of a party who had become bankrupt for a general balance. Here the claim is to a lien on the particular article for the work done upon it.

PATTESON, J. I am of the same opinion; and I ground it entirely on the finding of the jury as to the agreement for ready money. Suppose there had been no bankruptcy; before the plaintiffs could have obtained the stanhope back, they must have paid the 207., notwithstanding their cross demand, though, according to Cornforth v. Rivett, 2 M. & S. 510, if the bankrupt had delivered up the stanhope, the plaintiffs might have set off their cross demand in an action for the amount due. Then if the plaintiffs could not have set off the debt due to them as against the claim of Mott to be paid ready money pursuant to the agreement; the question is, whether they can, in like manner, avail themselves of that claim as against his estate, under the clause of mutual credit in the bankrupt act? I admit that the law of mutual credit under the bankrupt act goes farther than the ordinary law of set-off: Rose v. Hart, 8 Taunt. 499, Buchanan v. Findlay, 9 B. & Č. 738, and Rose v. Sims, 1 B. & Ad. 521, shew this and I agree with Mr. Cleasby that there is a mutual credit within the act, where a debt, or that which will terminate in a debt, exists on each side; but the question in this case is, whether the bankruptcy of one party does away with an express contract establishing a lien for payment of a particular debt. I find no case which decides that it can; and I think there is no ground for the rule.

*410]

DENMAN, C. J., concurred.

Rule refused.

BLOFELD v. PAYNE and Another. Jan. 12.

Declaration stated, that plaintiff, being the inventor and manufacturer of metallic hones, used certain envelopes for the same, denoting them to be his: and that defendants wrongfully made other hones, wrapped them in envelopes resembling the plaintiff's, and sold them as his own, whereby the plaintiff was prevented from selling many of his hones, and they were depreciated in value and reputation, those of the defendants being inferior:

Held, that the plaintiff was entitled to some damages for the invasion of his right by the fraud of the defendants, though he did not prove that their hones were inferior, or that he had sustained any specific damage.

CASE. The declaration stated that the plaintiff was the inventor and manufacturer of a metallic hone for sharpening razors, &c., which hone he was accus

tomed to wrap up in certain envelopes containing directions for the use of it, and other matters; and that the said envelopes were intended, and served, to distinguish the plaintiff's hones from those of all other persons; that the plaintiff enjoyed great reputation for the good quality of his hones, and made great profit by the sale thereof; that the defendants wrongfully and without his consent caused a quantity of metallic hones to be made and wrapped in envelopes resembling those of the plaintiff, and containing the same words, thereby denoting that they were of his manufacture, which hones the defendants sold so wrapped up as aforesaid, as and for the plaintiff's, for their own gain, whereby the plaintiff was prevented from disposing of a great number of his hones, and they were depreciated in value and injured in reputation, those sold by the defendants being greatly inferior. Plea, the general issue. At the trial before Denman, C. J., at the sittings in London after last term, *it appeared

that the defendants had obtained some of the plaintiff's wrappers, and [*411

used them as stated in the declaration; but no proof was given of any actual damage to the plaintiff. The questions left by his Lordship to the jury were, first, whether the plaintiff was the inventor or manufacturer? and, secondly, whether the defendants' hones were of inferior quality? but he stated to them that even if the defendants' hones were not inferior, the plaintiff was entitled to some damages, inasmuch as his right had been invaded by the fraudulent act of the defendants. The jury found for the plaintiff, with one farthing damages, but stated that they thought the defendants' hones were not inferior to his. Leave was reserved to move to enter a nonsuit.

Barstow now moved accordingly. The special damage alleged in the declaration was of the very essence of the case, and the plaintiff having failed to prove it, no ground of action remained. The whole struggle between the parties was, whether or not the defendants' hones were inferior to the plaintiff's, and the jury found that they were not. The declaration was not supported.

LITTLEDALE, J. I think enough was proved to entitle the plaintiff to recover. The act of the defendants was a fraud against the plaintiff; and if it occasioned him no specific damage, it was still, to a certain extent, an injury to his right. There must be no rule.

TAUNTON, J. I think the verdict ought not to be disturbed. The circumstance of the defendants' having obtained the plaintiff's wrappers, and made this use of them, entitles the plaintiff to some damages.

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*PATTESON, J. It is clear the verdict ought to stand. The defendants used the plaintiff's envelope, and pretended it was their own: they had no right to do that, and the plaintiff was entitled to recover some damages in consequence.

DENMAN, C. J., concurred.

Rule refused. (a)

In the Matter of Arbitration between WILLIAM LOWE and WILLIAM

HENRY JOHNSON.

The Court will not grant an attachment without personal service, in any case where the party applying has another remedy.

THE parties submitted to arbitration, and the submission was made a rule of Court. The award was against Lowe. Attempts having been made without success to serve him with copies of the award and rule of Court, Kelly, in the last term, moved, on affidavits setting out the special facts, for a rule to shew cause why an attachment should not issue for non-performance of the award. The Court thought that proper exertions had been made, but as the end of the

(a) See the judgment of Taunton, J., in Marzetti v. Williams, 1 B. & Ad. 425, and the authorities there cited.

term was near, they recommended that the matter should stand over till this term, and in the mean time further endeavours be used to effect a personal service. In the beginning of this term Kelly renewed his motion. There had been no personal service, and it appeared that the party knew it was intended, and avoided it.

PER CURIAM. We have considered this matter, and are of opinion that we ought not to grant an attachment *without personal service in any case where the party applying has another remedy. Rule refused.(a)

*413]

The party was afterwards served, and shewed cause.

SMITH v. GOODWIN and RICHARDS. Jan. 14.

After distress made by a broker, in a case within 57 G. 3, c. 93, the rent and charges may still be tendered to the landlord.

Declaration contained six counts in case; the seventh charged that the defendants took and distrained the goods of the plaintiff for rent, of more than sufficient value to satisfy the rent and costs, and then voluntarily abandoned the same, and afterwards wrongfully, injuriously, and vexatiously again took and distrained the same goods for the same rent, and refused to return the same, and converted them to their own use: Held, on motion in arrest of judgment for misjoinder of case and trespass, that although this second taking of the goods was a trespass, yet the plaintiff might bring case for the conversion, and that the count was an informal one in case, and sufficient after verdict.

THE first six counts of the declaration were in case, for an irregular distress. The seventh count was as follows: That, before the committing of the grievances next mentioned, to wit, on the 31st day of August 1831, the defendants took and distrained certain goods as a distress for rent then alleged to be due from the plaintiff to the defendant Goodwin, for and in respect of certain premises in the possession of the plaintiff, which goods were of more than sufficient value to have satisfied the rent, and the costs and charges attending such distress, and the sale of the goods under such distress, and incidental thereto; that the defendants having so taken and distrained the goods, had and retained possession of the same under such distress for a long space of time, to wit, five days then following, and, afterwards, and at the expiration of the said space of time, the defendants voluntarily abandoned the possession of the said goods, and the said distress thereon, and although the said defendants under the said distress, and by virtue thereof, could and might have satisfied the said arrears of rent, and all reasonable and lawful charges in *that behalf; nevertheless, *414] the defendants knowing, &c. but contriving, &c., to wit, on the 7th day of September 1831, wrongfully, injuriously, and vexatiously made a second distress upon goods of the plaintiff for the same identical alleged arrears of rent, in respect whereof the distress first-mentioned was made as aforesaid, and again took the said goods as a distress for the same rent so pretended to have been due as aforesaid, and wrongfully and injuriously refused to return the same to, and withheld them from the plaintiff under the said second distress for a long time, to wit, six days then following, and converted and disposed thereof to their own use, although requested to deliver the said goods to the plaintiff; whereby the plaintiff is injured in his credit and circumstances. The eighth count was in trover. Plea, not guilty.

At the trial before Denman, C. J., at the Middlesex sittings after last Michaelmas term, the following appeared to be the facts of the case:-' -The plaintiff was tenant to Goodwin, at a yearly rent of 257. Half a year's rent having become due at Midsummer 1831, on the 31st of August the defendant Richards, by Goodwin's order, distrained on the premises. On the 2d of September, Smith,

(a) See In the Matter of Bower, 1 B. & C. 264.

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